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THE AMERICAN 
CONSTITUTIONAL SYSTEM 



Ubc Bmerican State Series 

THE AMERICAN 
CONSTITUTIONAL SYSTEM 



AN INTRODUCTION TO THE STUDY 
OF THE AMERICAN STATE 



BY 
WESTEL WOODBURY WILLOUGHBY 

ASSOCIATE PROFESSOR OF POLITICAL SCIENCE 
AT THE JOHNS HOPKINS UNIVERSITY 




NEW YORK 

THE CENTURY CO. 

1904 



Two OoDi«s Received 

AUG 4 1904 

Otoyrisrht Entry 

i CLASS ^ XXfi. No. 

4 4-^2 

COPY t 






\ 



^^ 



o^\ 



Copyright, 1904, by 
The Century Co. 



The DeVinne Press 



PREFACE 

In the series of volumes bearing the title ' ' The Amer- 
ican State, ' ' to which this work is intended to serve as 
an introduction, there will be described in detail the 
manner in which the governmental agencies of this 
country— federal, state, and local— are organized and 
operated. The aim of the present essay is to prepare 
the way for this descriptive work by disclosing the con- 
stitutional character of the American State, explain- 
ing the status of its various territorial subdivisions, 
and indicating the extent of the powers of their several 
governments. In order to do this it has not been 
thought necessary or appropriate to prepare a compre- 
hensive treatise upon United States constitutional law. 
Considered as but an introduction to the volumes that 
are to follow, it has been conceived that the scope of 
this study should not include more than a determina- 
tion of the constitutional character of our compli- 
cated federal system, and a statement of the general 
principles in accordance with which the legal powers 
of its various governmental agencies are ascertained. 
The fact is therefore to be emphasized that no at- 
tempt is made in this volume even to enumerate the 



PREFACE 



specific powers possessed by, or the limitations im- 
posed upon, the several organs of the federal and 
state governments, much less to follow out in detail 
the manner in which these powers and limitations have 
been interpreted and applied. Indeed, it is not the 
collective purpose of the volumes that are to follow 
to do this. As indicated above, the aim of these vol- 
umes is to be a description of the political agencies of 
the American State, and an explanation of the manner 
in which they are actually operated. With the specific 
activities of our governments, such, for example, as 
the federal regulation of interstate commerce or 
Bankruptcy, the state control of corporations or manu- 
factures, or the municipal ownership or regulation of 
public utilities, these studies are not to be primarily 
concerned. It may be said, however, that should this 
series meet with the approval of the reading public, 
another series will probably be published dealing 
specifically with the activities of the American States, 
the individual volumes of which will be devoted to the 
consideration of such topics as "The American State 
and Trade and Commerce," ''The American State 
and Labor," "The American State and Education," 
etc. 

Returning now to the statement of the particular 
purpose of the introductory essay here presented to 
the public, it will be found that the author has first 

vi 



PREFACE 



attempted to ascertain the constitutional character of 
the American State ; that is to say, to determine whe- 
ther, in it, ultimate sovereignty is to be found located 
in the United States, viewed as a single national en- 
tity, or in the constituent commonwealths, or divided 
between the Federal State and its political members. 
This fundamental question having been answered, he 
has essayed to explain the manner in which, in actual 
practice, the integrity of our national government and 
the supremacy of its laws have been secured without 
at the same time destroying that independence of ac- 
tion on the part of the individual States which is char- 
acteristic of the federal system. This has involved 
the giving of answers to such questions as the follow- 
ing: Do the States, or did they ever, have a consti- 
tutional right to secede from the Union? Have they 
the right or power to nullify a federal law which they 
deem obnoxious or unconstitutional; and, if not, 
where else is to be found a security against unconsti- 
tutional action on the part of the General Govern- 
ment? In case of a refusal by States, or their peo- 
ples, to perform the functions constitutionally laid 
upon them, or an attempt upon their part to resist 
the operation of federal laws, what legal means of 
coercion are open to the General Government? To 
what extent may the United States control the form 
of governments established and maintained by the 

vii 



PREFACE 



States? To what extent may it supervise or compel 
the exercise by them of their ordinary functions? 
What is the status of territories belonging to the 
United States, but not included within the boundaries 
of any of the states? How may such territories be 
acquired, and what powers for their government are 
constitutionally possessed by the Union? These, and 
other similar questions which have to be answered be- 
fore one can have an adequate understanding of the 
nature of the American Constitutional System, and a 
knowledge of the manner in which its successful op- 
eration is secured, are examined in the light of mod- 
ern political theory, and the latest decisions of the 
Supreme Court of the United States. 

As regards the general method of presentation 
adopted, it may be said that in very many instances 
the authoritative language of the Supreme Court has 
been very closely followed. When space has per- 
mitted, it has been deemed proper to give the exact 
words of that tribunal. 

The terms ''Federal Government," ''General Gov- 
ernment," and "National Government" have fre- 
quently been used where technical exactness would 
have demanded the employment of "Federal State," 
' ' General State, ' ' and ' ' National State. " In so doing, 
however, the author has followed the general practice 
not only of other writers, but of the courts, and in 

viii 



PREFACE 



no instance, it is believed, has the meaning been ob- 
scured. Where the Supreme Court has been spoken 
of, without other qualification, the highest federal tri- 
bunal has been meant. 

Dealing as this volume does with the principles or 
philosophy of our constitutional system, it is hoped 
that it will be found not only interesting to the general 
reader but serviceable as a text-book for academic 
classes beginning the study of the public law and po- 
litical practice of our country. 

w. w. w. 

Johns Hopkins University, 

Baltimore, Maryland, July, 1905. 



IX 



CONTENTS 

PAGE 

Cases Cited . « » . o o , . o . . o . xiii 

CHAPTER 

I The Nature of the '' Federal " State ... 3 
II The Nature of the American State .... 12 

III The Development of National Sovereignty . 34 

IV Secession: Coercion of States: Reconstruc- 

tion 61 

^N The Supremacy of Federal Law 100 

VI Federal Control of State Governments . . Ill 
VII Federal and State Autonomy 122 

VIII Federal and State Powers 135 

IX Coercion of State Action 154 

X Federal Supervision of State Duties . . . 180 

XI The Power of the United States to Acquire 

Territory 190 

XII The Modes in which, and Purposes for which, 
Territory may be Acquired by the United 
States 198 

XIII The Constitutional Status of Territories: 

THE Political Rights of their Inhabitants . 205 

XIV The Constitutional Status of Territories: 

the Civil Rights of their Inhabitants . . 215 

XV Citizenship 241 

xi 



CONTENTS 

CHAPTER PAGE 

XVI The Political Status of Indians 250 

XVII The Citizenship of Inhabitants of Ceded 

Territories 257 

xviii Admission of New States 263 

y^ XIX Interstate Relations 272 

Bibliographical Note 291 

Constitution of the United States .... 300 

Index 319 



Xll 



CASES CITED 



^bleman v. Booth (21 How., 

506), 59, 65, 169 
Adams Express Co. v. Ohio 

State Auditor (165 U. S., 

194), 129 
Alexander's, Mrs., Cotton (2 

Wall., 404), 84 
American Insurance Co. v. Can- 
ter (1 Pet., 511), 194, 206, 

213, 258 
Andrews v. Andrews (188 

U. S., 14), 277 
Antoni v. Greenhow (107 U. S., 

769), 177 
Atherton v. Atherton (181 

U. S., 155), 276 

[Barron v. Baltimore (7 Pet., 

243), 151 
jBarron v. Burnside (121 U. S., 

186), 172 
Bell V. Bell (181 U. S., 175), 

276 
Benner v. Porter (9 How., 235), 

209 
Blake v. McClung (172 U. S., 

239), 281, 283 
Board of Liquidation v. Mc- 

Comb (92 U. S., 531), 178 
Bolln V. Nebraska (176 U. S., 

83), 267 
Boyd V. Thayer (143 U. S., 

135), 258 
Briscoe v. Bank of Kentucky 

11 Pet., 257), 56, 130 
[Brown v. Houston (114 U. S., 
j 622), 139 



Brown v. Maryland (12 Wh., 
419), 126 

Cardwell v. American River 

Bridge Co. (113 U. S., 205), 

138 
Carleton v. Rugg (149 Mass., 

550), 189 
Chappell V. United States (160 

U. S., 499), 131 
Charles River Bridge Co. v. 

Warren Bridge Co. (11 Pet., 

420), 57 
Cherokee Nation v. Georgia (5 

Pet., 1), 288 
Chinese Exclusion Cases (130 

U. S., 581), 149 
Chirac v. Chirac (2 Wh., 259), 

138 
Chisholm v. Georgia (2 Dall., 

419), 37, 289 
City of New York v. Miln (11 

Pet., 102), 57 
Civil Rights Cases (109 U. S., 

3), 182, 184 
Clinton v. Englebrecht (13 

Wall., 434), 205 
Cohens v. Virginia (6 Wh., 

264), 48, 50, 51, 164 
Collector v. Day (11 Wall., 

113), 130 
Cooley V. Board of Wardens 

(12 How., 300), 138 
Corfield v. Coryell (4 Wash., 

C. C, 371), 279 
Craig V. Missouri (4 Pet., 410), 

52 



Xlll 



CASES CITED 



Cross V. Harrison (16 How., Green v. Biddle (8 Wh., 1), 52, 

193), 211 285 

Green v. Neal (6 Pet., 219), 

Dartmouth College v. Wood- ^^^ 

ward (4 Wh., 518), 203 ^ ^ . . ^^^^ _ „ 

Debs, In re (158 U. S., 564), Hans i; Louisiana (134 U. S., 



102 



1), 173 



De Geofroy v. Eiggs (133 Hartman^ Greenhow (102 

U. S., 258), 219, 240 ^^ U. b., 67^), 178 

De Lima v. Bidwell (182 U. S., Hawaii ^ Mankichi (190 U. S., 

1), 195, 207, 216 XT P' n .no tt q 

Dobbins V, Commissioners of Headmoney Cases (112 U. S., 

Erie County (16 Pet., 435), ^^^^-^^ 1^%,, ,^ „ ,,_, 

226 Hepburn v. EUzey (2 Cr., 445), 

Dooley v. United States (182 ,,^^^' -?^^ 

U S 222) 199 Home Insurance Co. v. Morse 

Downesv. Bidwell (182 U. S., ^ (20 Wall 445), 171 

244) 217 Houston v. Moore (5 Wh., 1), 

Doyle V. Continental Insurance ^^'^ 

Co. (94 U. S., 535), 171 ^ tt •. , o. x ,-,o,t 

^ ' ^' Jones V. United States (137 

TXT- 11 • /-.no TT a o^^ U- S., 202), 149, 194, 197, 

Elk V. Wilkms (112 U. S., 94), g^g 

iiO J. 

Elmendorf ^. Taylor (10 Wh., ^^^^^^ ^_ Colorado (185 U. S., 

loA), 16^ 125) 288 

Escanaba v^ Lake Michigan ^eith i. Clark (97 U. S. 454), 

Transportation Co. (107 U- gg 

S., 678), 267 Kentucky v. Dennison (24 

How., 66), 57, 162 

Fleming v. Page (9 How., 603), Knox v. Lee (12 Wall., 557), 

199 98, 148 
Fletcher v. Peck (6 Cr., 87), 44 

Fordi;. Surget (97U. S., 594), Lane County v. Oregon (7 

81 Wall., 76), 94 

Fourteen Diamond Eings v. Lemmon v. People of New 

United States (183 U. S., York (20 N. Y., 607), 279 

176), 217 License Cases (5 How., 504), 

57 

Gassies v. Ballon (6 Pet., 761), Loughborough v. Blake (5 Wh., 

243 317), 228, 239 

Gelpcke v. Dubuque (1 Wall, Louisiana v. Jumel (107 U. S., 

175), 134 711), 175 

Gibbons v. Ogden (9 Wh., 1), Louisiana v. Texas (176 U. S., 

52. 1), 288 

Gonzales v. Williams (24 Sup. Luther v. Borden (7 How., 1), 

Ct. Eeporter, 177), 262 118 

xiv 



CASES CITED 



Lynde v. Lynde (181 U. S., Osborn v. Bank of United 

183), 277 States (9 Wh., 738), 52, 100, 

174 
McCuUoch V. Maryland (4 Wh., 

McCuHough ^t'. vfrginia (172 ^^^^J/' Virginia (8 Wall, 168), 

TT Q 102"^ 1^4- ^7o 

Mckim''t;. Vorhies (7 Cr, 279), ^^T^ ,^0 ^^^ ^^^ ^' ^'' 

Marbury v. Madison (1 Cr, Pensacola Telegraph Co v. 

137) 39 Western Union Telegraph Co. 

Marshall v. Holmes (141 U. S, x> ^^a ^: ^'' "^i' ^^K 

eiQQ\ i7n Pomdexter v. Greenhow (114 

Martin v. Hunter's Lessee (1 t> Vi i'/ t ^' tt 

Wh, 304), 48, 50, 105, 138 ^''ij^''^\,^f T^/' ^^^"^ ^^ 

Maxwell i;. Dow (176 U. S, t> i ' l^i ^' /11 t> . .or-. 

581) 187 Poole -y. Fleeger (11 Pet, 185), 

Maynard v. Board (84 Mich, -d ?^^ t^ , • /-.^ t^ . 

228) 114 Prigg V. Pennsylvania (16 Pet, 

Merryman, Ea; parte (Camp- t> ?^^^A ^^' "I^o^t^i 1 ^o^n o. 

bell's Eeports, 246), 148 ^"^^ ^^«^« (^ Black, 635), 84 

Minor v. Happersett (21 Wall, -r,- -n, . ,. tt a^^^ 

162) 221 ^^^ '^* Foster (4 Harr, 479), 

Mississippi v. Johnson (4 Wall, -^ „• i /. /^ ^^-.n 

475), 99, 289 -^^^^ ^' timely (4 Cr, 241), 

Missouri v. Illinois (180 U. S, ^^ 

208), 287 

Missouri Pacific E. E. v. Scott v. Jones (5 How, 343), 

Humes (115 U. S, 512), 189 271 

Monongahela Navigation Co. Scott v. Sanford (19 How., 

V. United States (148 U. S., 393), 243 

312), 131 Sere v. Pitot (6 Cr, 332), 205 

Mormon Church v. United Shelby v. Guy (11 Wh, 361), 

States (136 U. S, 1), 149, 133 

194, 195, 206, 207 Siebold, Ex parte (100 U. S, 

Murphy -u.'Eamsay (114 U. S, 371), 102, 167 

15), 206, 208 Slaughter House Cases (16 

Wall., 36), 185, 245 

National Bank v. Common- South Dakota v. North Caro- 

wealth (9 Wall., 353), 126 lina (24 Sup. Ct. Eeporter, 

National Bank v. County of 269), 173 

Yankton (101 U. S., 129), Spies, Ex parte (123 U. S., 

207 131), 188 

Neagle, In re (135 U. S, 1), Stearns v. Minnesota (179 

106 U. S, 223), 286 

New Hampshire v. Louisiana Strader v. Graham (10 How., 

(108 U. S, 76), 172, 289 82), 264 

XV 



CASES CITED 



Strauder v. West Virginia (100 

U. S., 303), 184 
Streitwolf v. Streitwolf (181 

U. S., 179), 276 
Sturges V. Crowninshield (4 

Wh., 122), 137 

Tennessee v. Davis (100 U. S., 

257), 104 
Texas v. White (7 Wall., 700), 

93 
Tindal v. Wesley (167 U. S., 

204), 175 
Tinsley v. Anderson (171 U. S., 

101), 107 

Union Pacific Ey. v. Peniston 

(18 Wall., 5), 127 
United States v. Arjona (120 

U. S., 479), 109, 149 
United States v. Fisher (2 Cr., 

358), 40, 142 
United States v. Huekabee (16 

Wall., 414), 194 
United States v. Kagama (118 

U. S., 375), 254 
United States v. Lee (106 

U. S., 196), 174 
United States v. North Caro- 
lina (136 U. S., 211), 290 



United States v. Peters (5 Cr., 

115), 41 
United States v. Texas (143 

U. S., 621), 290 
United States v. Wong Kim 

Ark (169 U. S., 649), 248 

Veazie Bank v. Fenno (8 Wall., 

533), 129, 143 
Virginia, Ex parte (100 U. S., 

339), 183 
Virginia v. Tennessee (148 

U. S., 503), 285 

Weber v. Harbor Commission- 
ers (18 Wall., 57), 264 

Weston V. Charleston (2 Pet., 
449), 52, 126 

Williams v. Bruffy (96 U. S., 
176), 83 

Wisconsin v. Pelican Insurance 
Co. (127 U. S., 265), 275 

Worcester v. Georgia (6 Pet., 
515), 251 

Yarborough, Ex parte (110 
U. S., 651), 168 



XVI 



THE AMERICAN 
CONSTITUTIONAL SYSTEM 



THE AMERICAN 
CONSTITUTIONAL SYSTEM 

CHAPTER I 

THE NATURE OF THE ' ' FEDERAL ' ' STATE ^ 

The Definition of a State. In its form of governmen- 
tal organization the American State represents a very 
complex political type. For this reason, in order to 
determine satisfactorily its exact legal character it will 
be necessary first to consider the essential attributes 
of a State in the abstract. 

An aggregate of men living together in a single 
community, and united by mutual interests and rela- 
tionships, we term a Society. When there is created 
a supreme authority to which all the individuals of 
this society yield a general obedience, a State is said 
to exist. The social body becomes, in other words, a 
body politic. The instrumentalities through which 
this superior authority formulates its will and secures 
its enforcement is termed a Government; the com- 
mands it issues are designated Laws ; the persons that 

^ In this chapter the author has drawn liberally from an earlier 
work entitled " The Nature of the State : A Study in Political 
Philosophy." 

3 



THE AMERICAN CONSTITUTIONAL SYSTEM 

administer them, public officials, or, collectively, a 
Magistracy; the whole body of individuals, viewed as 
a political unit, is called a People ; and, finally, the 
aggregate of rules or maxims, whether written or un- 
written, that define the scope and fix the manner of 
exercise of the powers of the State, is known as the 
Constitution. The State itself, then, is neither the 
Peoplcyfthe Government, the Magistracy, nor the Con- 
stitution. Nor is it, indeed, the territory over which 
its authority extends. It is the given community of 
individuals viewed in a certain aspect— namely, as a 
political unity. 

The one characteristic that is essential to the State, 
and serves to distinguish it in toto genere from all 
other human associations, is its possession of political 
sovereignty. By political sovereignty is meant, on 
the one hand, complete freedom from the legal con- 
trol of any other power whatsoever, and, on the other 
hand, absolute and exclusive control over the legal 
rights and obligations of its citizens, individually con- 
sidered or grouped into larger or smaller associations. 
The State is thus supreme not only as giving the ul- 
timate validity to all laws, but as itself determining 
the scope of its own legal powers and the manner of 
their exercise. 

In every politically organized community that is 
entitled to be termed a State, there must exist, then, 
an authority to which, from the legal standpoint, all 
interests are potentially subject. In the entire body 
of laws of a State are summed up the powers of that 
State as actually exercised. In the constitutional 
laws are declared the powers legally exercisable by 

4 



THE NATURE OF THE "FEDERAL" STATE 

the ordinary governmental organs. Thus at any one 
time the domain of the legal and political liberties of 
the individual is simply that which neither public 
officials nor private persons may legally enter. From 
possible control by the State, however, through the 
enactment of new constitutional or statutory laws, 
these liberties are not and cannot be removed. Pro- 
fessor Burgess puts this very clearly when he says: 
* ' The individual is defended in this sphere against the 
government by the power that makes and maintains 
and can destroy the government; and by the same 
power, through the government, against encroach- 
ments from any other quarter. Against that power 
itself, however, he has no defence. ' ' ^ 

In the eyes of political theory the State is a legal 
person. It has its rights and duties and possesses a 
supreme will which it expresses through its law-mak- 
ing organs in authoritative commands. Sovereignty, 
as thus expressing the State's supreme will, is neces- 
sarily a unity and indivisible. That there cannot be 
in the same being two wills, each supreme, is obvious. 
But though the sovereign will of the State may not be 
divided, it may find expression through several leg- 
islative mouthpieces, and the execution of its com- 
mands may be delegated to a variety of governmental 
organs. Theoretically, indeed, the State may go to 
any extent in the delegation of exercise of its powers 
not only to governmental organs of its own creation, 
but even to those of other States. Thus a given State 
may, in fact, retain under its own immediate direc- 
tion only a ]nost meager complement of activities, and 
1" Political Science and Constitutional Law," I, 176. 

5 



THE AMERICAN CONSTITUTIONAL SYSTEM 

yet preserve ■animpaired its sovereignty ; for in such a 
case the public bodies or States to which the' exercise 
of the powers has been granted, act as the agents of 
the State in question, and this State still possesses the 
legal, if not the actual, power of again drawing to 
itself the exercise of the powers it has delegated. 
Thus mother-countries may concede to colonies the 
most complete autonomy of government, and reserve 
to themselves a control of so slight and negative a 
character as to make its exercise a rare occurrence; 
yet, so long as such control exists, the sovereignty of 
the mother-country is not released, and such colony is 
therefore to be considered as possessing no indepen- 
dent political powers. Again, as we shall later see, in 
the so-called Confederate State, the member Common- 
wealths may yield to the Central Government the 
exercise of their most important powers and yet re- 
tain their sovereignty; and, on the other hand, a 
national Federal State may, without destroying its 
sovereignty, yield to particular territorial authorities 
an extent of power sufficient to endow them, appar- 
ently, with almost all the characteristics of indepen- 
dent bodies politic. 

A State cannot be Created by an Agreement between 
States. A State owes its existence to the fact that, 
in the individuals over whom its authority extends, 
there is a sentiment of unity sufficiently strong to lead 
them to surrender themselves to the control of a single 
political power for the sake of realizing the desires 
to which such a sentiment gives rise. In other words, 
this subjective condition first comes into being, and, 

6 



THE NATURE OF THE "FEDERAL" STATE 

when sufficiently powerful, finds objective manifesta- 
tion in the creation of a political organization. 

This being the manner in which a State comes into 
being, it follows that it is improper, in any instance, 
to ascribe to it a juristic or conventional origin. A 
State is not created by the formal adoption of a writ- 
ten Constitution. The acceptance by a People of such 
an instrument is necessarily the political act of a com- 
munity already transformed into a body politic, and 
its provisions derive their force as law from that fact. 
In fine, the Constitution is but the law which defi- 
nitely determines the organs through which the State, 
already in existence, is henceforth to exercise its pow- 
ers. That the adoption of a formal instrument of 
government is not a politically creative act is shown 
by the fact that such a Constitution is by no means 
essential to the existence of a State. Written Consti- 
tutions are, indeed, of comparatively recent origin, 
and their raison d'etre goes no deeper than political 
expediency. 

Another conclusion following from the fact that a 
formal or juristic origin cannot be ascribed a State, 
is that no State can obtain its sovereignty by a simple 
transfer of authority from other States. A new State 
can take its origin only after the entire withdrawal of 
a People from the civic bonds in which they have 
before been living. Not until the old State (or States) 
has (or have) been destroyed, peaceably or by force, 
can the new State take its rise, for a People cannot 
live under two sovereign powers at the same time. In 
other words, however peaceably the transition may be 
effected, the erection of a new sovereignty over a 

7 



THE AMERICAN CONSTITUTIONAL SYSTEM 

People already politically organized, is necessarily 
an illegal, revolutionary act when viewed from the 
standpoint of the old State. It may, indeed, be the 
case that in adopting the new Constitution the gov- 
ernmental machinery of the old State is employed; 
but, in SQch a case, those governmental organs, when 
so utilized, are to be conceived as no longer the agen- 
cies of the old State, but as implements employed by 
the new body politic for the execution of its own legal 
will. 

In fine, then, it must be held that, though an exist- 
ing State, so long as it acts through the forms pre- 
scribed for constitutional amendment, may wholly 
change the character of its governmental organization, 
or may delegate the exercise of its most important 
powers, it cannot by its own act create a new sov- 
ereignty.^ 

The Nature of a Federal State. Applying the fore- 
going conclusions to the apparent creation of a new 
Federal State by the union of a number of States, we 
are necessarily led to hold that though the birth of 
the new sovereignty is practically synchronous with 
the adoption of the written articles of union, it cannot 
be said that such Federal State owes its creation to 
that act. If it be admitted that, as a matter of fact, 
a single sovereign State has come into being, its con- 

1 The author realizes that this fundamental principle of politi- 
cal theory is by no means adequately treated in the foregoing 
paragraphs. Requirements of space compel him, however, to 
refer the unsatisfied or unconvinced reader to his " Nature of the 
State," Chapters vi and x, where the topic is more fully discussed. 



THE NATURE OF THE "FEDERAL" STATE 

ditioning basis must be considered to have been the 
feeling of national unity that first created it a single 
political body oat of a number of sovereign Peoples, 
and then gave to it an objective organization. The 
new State cannot, in other words, be held to have 
derived its sovereignty by grant from the formerly 
existing sovereignties, nor can such sovereignties be 
held to continue to exist after the new national sov- 
ereignty becomes a fact. 

We are thus irresistibly led to the conclusions that 
not only cannot a so-called Federal State be based 
upon an agreement or compact between preexistent 
States, but that it cannot be itself, in any strict sense, 
composed of constituent States. In all exactness, the 
term "Federal State" is thus an improper one.^ A 
federal form of Government we may have, but not a 
Federal State; for a State is by its very nature 
a unity in that its essential attribute, its sovereignty, 
is necessarily a unity. There cannot be, therefore, any 
such thing as a State composed of States. Strictly 
speaking, therefore, the only correct manner in which 
the term "Federal State" may be employed is to 
designate a State in which a very considerable degree 
of administrative autonomy is given to the several dis- 
tricts into which the State 's territory is divided. Con- 
versely, we must hold that in all composite political 
organizations in which the individual members still 
retain their sovereignty, and therefore continue to 
exist as States, no National State is created. A Cen- 

1 Though thus technically incorrect, the author has felt him- 
self constrained, by general usage, at times to employ the term 
"Federal State." 

9 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tral Government ^dth very considerable powers may 
indeed exist, but only as the common agent of the 
several associated States, not as the organ of a distinct 
central sovereignty. Furthermore, the written articles 
of union, if such there be, cannot be regarded as a law 
or Constitution, but only as an international compact 
or treaty. 

The foregoing analysis of the nature of sovereignty 
and the State enables us to say that the distinction be- 
tween a National State with a federal form of gov- 
ernment and a Confederacy of sovereign States is not 
based upon the quantum of powers, the exercise of 
which is vested in the Central Government ; nor, neces- 
sarily, upon whether the commands emanating from 
the central legislature operate directly upon individ- 
uals or upon the individual Commonwealths; nor, 
finally, upon the difference between a Central Govern- 
ment with enumerated and one with unenumerated 
powers. The one absolute and finally determining 
criterion is : What authority has, in the last instance, 
the legal power of fixing its own legal competence, 
and, as a result, that of the others 1 

In the sovereign State of the federal governmental 
form, the legal right of secession on the part of the 
individual Commonwealths is of course excluded. 
From the strictly juristic standpoint, the Common- 
wealths derive their existence from the will of the 
national State. They have, therefore, no control over 
their own political status. 

The doctrine of nullification, which concedes to the 
Commonwealth members of a federal union, individu- 
ally or acting in concert, a right to refuse obedience 

10 



THE NATURE OF THE "FEDERAL" STATE 

to, and prevent the enforcement within their respec- 
tive limits of, such federal laws as to them seem 
unwarranted by the articles of union, is also clearly 
inapplicable in a true federal State. Even in a Con- 
federacy of sovereign States the right to "nullify" 
general laws cannot be spoken of as a legal right. 
Each member of such a union being completely sov- 
ereign, may govern its action by its own will, and 
no other member may legally say nay. It is hardly 
conceivable that the assertion of such a power on the 
part of a particular confederated State will not lead 
to disruption of the union. For it can scarcely be 
imagined that the other members will consent to the 
avoidance by such State of the execution of a part of 
the general law, while they hold themselves bound to 
it. Such a condition of affairs would, in fact, result 
ipso facto in a destruction of the union to that extent, 
the sole end of the confederation being to secure a 
concert of action in matters of general interest. It 
would, indeed, be a just casus belli against the State 
so refusing obedience to the agreement in which it 
bound itself to common action. Jefferson, the author 
of the Kentucky Resolutions, himself asserted the pro- 
priety of a confederate government coercing a State 
when he wrote to Cartwright advising the Congress 
of the old Confederacy to send a frigate and compel 
a State to pay its quota of taxes ; and in general those 
who in 1861 asserted that secession on the part of the 
individual States violated no legal obligation ex- 
pressly repudiated the idea that States might refuse 
obedience to such federal laws as they objected to and 
still remain in the Union. 

11 



CHAPTER II 

THE NATURE OF THE AMERICAN STATE 

We are now in a position to consider the validity of 
the various views that have been held regarding the 
nature of the American State. 

In the controversies which have been had as to the 
nature of our Union, the States' Rights school have 
held a single and logical theory, according to which 
it has been declared that the Constitution is, and was 
intended to be, the creation in 1789 of the several 
States acting as individual and sovereign political en- 
tities. Granting this premise, the conclusions which 
have been drawn from it as to the confederate nature 
of the Union and the legal right of secession have fol- 
lowed as logical and necessary consequences. All 
agreements between sovereign States necessarily par- 
taking of a contractual character, a Constitution cre- 
ated by the union of the wills of several States cannot 
be other than of a non-legal or conventional nature. 
The States, therefore, which are united under it, it 
has been asserted by members of this school, are 
bound to abide by its provisions or to continue under 
it, only by practical or moral considerations. They 
are not, it has been declared, subject to it as to a 
legal superior, for that would be to make the creature 
superior to its creators. 

12 



THE NATURE OP THE AMERICAN STATE 

To meet this argument, the advocates of national 
supremacy in this country have been led to propound 
a variety of theories and statements of fact. By some 
it has been alleged that, even if it be admitted that at 
the time of the adoption of the Constitution the 
States were severally sovereign, and were, in fact, the 
parties by which that instrument was established, still 
the record which we have of the intentions of those 
who drafted it, and of those who were influential in 
its ratification, reinforced by a rational interpretation 
of its own words, demonstrates that the States in- 
tended to, and actually did, in that agreement, sur- 
render up and forever quit-claim every right or title 
to future sovereignty; which sovereignty was hence- 
forth to be vested in the government and State therein 
provided for. This, to our surprise, is substantially 
the position assumed by one of the latest commentators 
upon our constitutional law, Mr. Roger Foster.^ 

The illogical character of this theory is sufficiently 
obvious. In the first place, it assumes what we have 
seen to be an impossibility, the voluntary subjection 
of a State to an absolute legal control of another 
power by an agreement between itself and other sov- 
ereign powers. In the second place, it considers the 
adoption of a written Constitution as creative of a 
State, whereas, in fact, as we have learned, a Consti- 
tution is necessarily the creation of a preexistent 
State, and is merely the instrument wherein that State 
provides for its governmental organization and for the 
distribution of its political power. 

1 " Commentaries on the Constitution of the United States " 
(1895), Vol. I, $ 15. 

13 



THE AMERICAN CONSTITUTIONAL SYSTEM 

A second and more logical manner in which the po- 
sition of the States' Rights school has been met has 
been by the assertion, either that the individual mem- 
bers of onr Union never were severally sovereign and 
independent States, or that, if they ever were, they 
were not such in the years 1787-89, or that if they 
were then sovereign, it was not they, but the people 
of all the States as a single sovereign aggregate, who 
established our present Federal State. 

That the States never were severally sovereign and 
independent bodies politic has been widely asserted 
by public men, as well as confidently stated by such 
constitutional-law writers as Story, Pomeroy, Von 
Hoist, and Lieber, and, though less explicitly, by 
Cooley and Hare. Finally, in the comparatively re- 
cent work of Professor Burgess on "Political Science 
and Constitutional Law," we find taken substantially 
the same position. On page 100 of the first volume 
he says of the First Continental Congress that it "was 
the first organization of the American State. " " From 
the first moment of its existence, ' ' he continues, ' ' there 
was something more upon this side of the Atlantic 
than thirteen local governments. There was a sover- 
eignty, a State, not in idea simply or upon paper, but 
in fact and organization." 

The difficulty experienced by all these writers who 
maintain the sovereignty of the National Government 
from the time of the severance of our colonial connec- 
tion with England, is to explain the status of. the 
Union during the period when the Articles of Con- 
federation were in force. The non-sovereign character 
of the Central Government established by these Arti- 

14 



THE NATURE OF THE AMERICAN STATE 

cles is practically beyond dispute. It is not only ap- 
parent by their phraseology, but was so conclusively 
demonstrated by the logic of events, as to admit of 
no contradiction. This period is therefore usually 
spoken of, by those who hold the theory we have just 
been considering, as one during which the individual 
States had "usurped" the legitimate national sov- 
ereignty, but that, nevertheless, underneath, as a sub- 
merged but yet existent political entity, the National 
State still existed. Thus says Pomeroy: "However 
much the States may have exercised 'usurped' attri- 
butes of sovereignty during the unhappy confedera- 
tion ; however much the conception of one people act- 
ing as a unit may have been forgotten or abandoned 
amid the jealousies and destructive rivalries of the 
commonwealths claiming substantial independence; 
the people had now [1789] arisen, reasserted the 
original idea, repudiated the assumption of local su- 
premacy and uttered their organic will in terms which 
we hope will have a meaning and power to the end of 
time." Von Hoist says that the Continental Con- 
gress "exhorted the legislatures, by an act of public 
usurpation against the legal consequences of historical 
facts, to transform the Union into a league of States, 
and the legislatures recklessly responded to this de- 
mand." Professor Burgess maintains that during 
this confederate period "the American State ceased 
to exist in objective organization. It returned to its 
subjective condition merely, as idea in the conscious- 
ness of the people;" that "from the standpoint of 
political science, what existed now, as objective insti- 
tutions, was a central government and thirteen local 

15 



THE AMERICAN CONSTITUTIONAL SYSTEM 

governments. From the standpoint of public law, on 
the other hand, what existed as objective institutions, 
was thirteen States, thirteen local governments, and 
one central government. This was a perfectly un- 
bearable condition of things in theory, and was bound 
to become so in fact. . . . There was here simply a 
struggle between the central government and the 
local governments about the distribution of govern- 
mental powers, which could only be settled by the 
word of the sovereign— the State. The State, how- 
ever, was not organized in the confederate constitu- 
tion; i. e., it could not legally speak the sovereign 
command. . . . The State had no legal organization 
in the system." 

It must be apparent that such reasoning as is con- 
tained in the above quotations is a playing fast and 
loose with political theory, and a vain attempt to up- 
hold an untenable position. How can we speak of a 
government as a usurping one which had an ad- 
mitedly de facto position, and was voluntarily es- 
tablished and maintained by the people organized 
under it? The condition of affairs under the Articles 
was undoubtedly an unsatisfactory one, but there was 
certainly no question of usurpation. But aside from 
the question of fact, how can Professor Burgess con- 
ceive of a State as ceasing to exist objectively and 
still maintaining a subjective existence, when the two 
are necessarily but different aspects of the same thing, 
which can be disassociated in thought only ? Or, aside 
from this inherent impossibility, how can he conceive 
of such a state of affairs, when the unequivocal, vol- 
untary, objective act of the people in adopting and 

16 



THE NATURE OF THE AMERICAN STATE 

maintaining the Articles affords conclusive evidence 
that the subjective sentiment of national unity had 
ceased to exist, if, indeed, up to that time, it had ever 
existed ? 

We have usually been taught that the adoption of 
the Articles was a step— albeit an insufficient step — 
toward union ; yet this school of thinkers which we 
have been considering would have us believe that the 
adoption of that instrument was a step backward,— 
the objective destruction of a union which had pre- 
existed. 

As to that part of the argument of the writers we 
have just been considering which denies that the 
effect of the separation of the thirteen colonies from 
Great Britain was to transform them into thirteen 
severally sovereign States, it may simply be said that 
the testimony of history is overwhelmingly to the ef- 
fect that, with practical unanimity, the people of those 
times held the contrary view, and that a reasonable 
interpretation of the facts supports them in their 
opinion. Concert of action there of course was, but 
cooperation did not create constitutional union any 
more than did the concert of action of the Allies in 
the Napoleonic wars operate to fuse into one political 
sovereignty the participating States. So evident, in- 
deed, was the original sovereignty of the several thir- 
teen States after 1776, that it was conceded by Web- 
ster, Madison, and Hamilton, and was, in fact, not 
once questioned, so far as we know, for nearly half a 
century after our present government was established. 

However, the maintenance of the assertion that the 
States were sovereign prior to the adoption of the 
2 17 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Articles of Confederation, is, after all, of no great 
significance, for if it be true that the States were in- 
dividually sovereign between 1781 and 1789, then, 
whether they became such in an illegal and usurping 
manner or not, the fact would still be that, at the time 
of the adoption of our present Constitution, they were 
the only bodies politic vested with the sovereign 
power. The fact, therefore, even if it could rightly 
be alleged, that there had been a prior sovereignty of 
the Nation, would have only a moral or argumentative 
effect in justifying the right of the people to act as 
a unit in 1789, and as demonstrating that, as a matter ^ 
of fact, they did do so. 

Granting then that the individual States were sev- 
erally sovereign in 1789, how, if at all, is the national 
character of our present Constitution to be main- 
tained ? . The best-known answer to this question is 
that rendered classic in the speeches of Webster, that, 
though the States existed in 1789 as thirteen sovereign 
bodies politic, and though the Constitution was for- 
mally ratified by the people acting through conven- 
tions convened for that purpose in and by each of 
such States, yet the act of adopting the Constitution 
was, after all, not the act of the several States, but of 
the whole people united into a political unity by that 
subjective feeling of nationality which is the ultimate 
foundation of every sovereign State. In other words, 
this theory is that at this time the National State ex- 
isted subjectively in the minds of the people and was 
made objectively manifest in the creation of a Na- 
tional Government ; and that existing state organs and 
political machinery were used merely for convenience 

18 



THE NATURE OF THE AMERICAN STATE 

for the realization of that object. This view, it will 
be seen, differs from the one which holds that the in- 
dividual States were not at that time sovereign, in 
that it makes the adoption of the Constitution a revo- 
lutionary act as regards the then de facto state gov- 
ernments. 

The point to be observed in regard to this theory is, 
that, as ordinarily argued, it puts the controversy 
upon a plane where absolute demonstration, either for 
or against, is rendered impossible. The allegation 
that, though the people ratified in state conventions, 
they yet believed themselves to be acting and intended 
to act as a single national unit, is one which can be 
proved or disproved only by searching the minds of 
the people of that time. The question is thus made 
to turn upon the existence or non-existence of a mental 
state, a subjective condition purely. Now the only 
evidence which, in general, has been adduced upon 
this point is the records which we have of national- 
istic and particularistic expressions of the statesmen 
of the time, together with what other written evidence 
may be produced to show what the people themselves 
thought was the character of the constitutive act 
which they were performing. Had there but been a 
substantial agreement of opinions at the time, or had 
the people been skilled in logical and legal distinctions 
in political philosophy, and gifted with a foresight as 
to the necessity of rendering the character of their 
acts perfectly explicit, and, lastly, had their inten- 
tions, as finally contained in the instrument of govern- 
ment which was adopted, been so unequivocally stated 
as to admit of but one construction, then, and only 

19 



THE AMERICAN CONSTITUTIONAL SYSTEM 



then, such evidence might possibly be so exhaustively 
collected as to afford ground for a satisfactory, if not 
absolutely certain, decision in the matter. But it is 
scarcely necessary to say that such conditions did not 
exist. So long, therefore, as the argument is con- 
ducted along these lines, both sides are abundantly 
able to cite facts as well as expressions of opinion fa- 
vorable to their views, without either of them being 
ever able conclusively to satisfy either their opponents 
or the impartial student. 

From some sources the view has been advanced that 
the framers of our Constitution were well aware of 
the logical dilemma that, in any federal State, the 
sovereignty when traced to its final source is to be 
found in its entirety either in the central power or 
in the constituent States, but that they purposely 
avoided giving an explicit statement in the instru- 
ment which they drafted as to which horn of this 
dilemma they accepted. This is a view taken by Pro- 
fessor A. W. Small in his essay entitled ''The Begin- 
nings of American Nationality," in which he says, 
''The people of the United States simply dodged the 
responsibility of formulating their will upon the dis- 
tinct subject of National sovereignty until the legisla- 
tion of the sword began in 1861." This is also the 
view of the late President Francis A. Walker, as 
expressed in an article entitled "The Growth of 
American Nationality," published in 1895. In this 
he writes, "The issue was one which, if not pur- 
posely made doubtful, was purposely left doubtful, 
because any attempt to force the issue at that time 
would have meant nothing more or less than the 

20 



THE NATURE OF THE AMERICAN STATE 

immediate and complete failure of any scheme of 
Union." 

This theory is thus, it will be observed, a frank non 
possumus, as to whether or not a National State did 
actually exist or was created in 1789. 

Attractive as is this theory in its solution, or rather 
avoidance, of the difficulties inherent in the analysis 
of the constituent act of 1789, it is, unfortunately 
almost, if not quite, unsupported by historical evi- 
dence. Surely if the real nature and importance of 
the distinction between a Confederation of States and 
a single, absolutely sovereign National State had been 
clearly perceived by those taking the leading part in 
the framing of the new federal instrument of govern- 
ment, and if, with this distinction in mind, a con- 
scious, deliberate attempt was made to leave the mat- 
ter unsettled, some one of them would have avowed 
it, or at least have made a note of it in his private 
writings. That there may have been a few prescient 
minds that saw that there was lacking in the proposed 
Constitution a decisive answer to the question as to 
where the ultimate sovereignty in the United States 
was henceforth to lie, we may admit. But that this 
fact was generally recognized by the leaders of the 
people in the constitutional and state-ratifying con- 
ventions, and that there was an agreement between 
these leaders to remain silent upon this point, is, con- 
sidering the bitterness of the debates preceding the 
final ratification of the Constitution, practically in- 
conceivable. 

Some more satisfactory answer to this all-important 
question than the one just considered is, therefore, 

21 



THE AMERICAN CONSTITUTIONAL SYSTEM 

needed. This more satisfactory answer is the fol- 
lowing : 

It has been generally held that if it be admitted 
that the States were sovereign in 1789, and that the 
people themselves believed the Constitution to be, and 
intended that it should be, a compact between the 
States, then a Confederacy must be conceded to have 
been established, and secession, consequently, a con- 
stitutional right. We do not believe that this necessa- 
rily follows, and for these reasons. It clearly ap- 
pears from what we know of the thought of the period 
that the people generally, as well as the most influ- 
ential of the public men, regarded the Constitution as 
a compact between the States. We find it repeatedly 
so stated by the most earnest advocates of a strong 
central government, both at the time of the adoption 
of the Constitution and during the first years which 
followed its ratification. Thus, to give a single in- 
stance, as typical of many, we find Madison in the 
thirty-ninth number of the "Federalist" declaring 
that ''this assent and rectification is to be given by the 
people not as individuals composing one entire nation, 
but as composing the distinct and' independent States 
to which they respectively belong. It is to be the 
assent and ratification of the several States, derived 
from the supreme authority in each State,— the au- 
thority of the people themselves. The act, therefore, 
establishing the constitution will not be a national but 
a federal act. ' ' Indeed, the Constitution itself plainly 
enough says that "the ratification of the conventions 
of nine States shall be sufficient for the establishment 
of this Constitution hetween the States so ratifying 

22 



THE NATURE OF THE AMERICAN STATE 

the same." More unequivocal language than this it 
is difficult to imagine. In the light, then, of this ex- 
press statement in the instrument itself and of numer- 
ous and unrepudiated contemporaneous expressions 
to the same effect, the fact would seem to be incontes- 
table that the basis of the new National State was 
conceived by those establishing it to rest upon an 
agreement between the several ratifying States. 

Notwithstanding, however, this general predication 
of a contractual basis for the new Constitution, there 
is equally positive proof that the people of the time 
intended to establish, and believed that they were es- 
tablishing not simply a central governmental power 
that was to act as the common agent in certain matters 
for a league or confederation of sovereign States, but 
a National State under which no right, either of nulli- 
fication of federal law, or withdrawal from the Union, 
was to be reserved to or by the States. To be sure, 
these two views are, and were, logically contradictory, 
and had the people of that time been political logi- 
cians, they would not have been able to accept them 
both. But this does not militate against the fact that, 
in truth, they did accept them both. 

As is well known, the political thought of that time 
was saturated with, and completely dominated by, 
the doctrines of natural rights, popular sovereignty, 
and the legitimization of political authority by mu- 
tual agreement between the governed, or between them 
and their rulers. For proof of the universality with 
which these views were held, one need search no fur- 
ther than the preamble and bills of rights of the state 
constitutions of that time, the writings of men like 

23 



THE AMERICAN CONSTITUTIONAL SYSTEM 



Jefferson, Madison, Jay, and Tucker, and the decisions 
of the courts, including the early opinions of the 
Supreme Court of the United States. Throughout 
all the writings of the period, and for a generation 
following, where not explicitly stated, this political 
philosophy was held as necessarily implied. 

If, then, there was a practical consensus of opinion 
that a public will could be created by a union of in- 
dividual wills,— that public rights could be based 
upon a surrender of personal rights of individuals 
who were originally severally sovereign,— if this were 
so, what could be more natural than that the people 
should believe it to be equally possible for a national 
sovereignty to be created through the mutual agree- 
ment of thirteen severally sovereign political person- 
alities? The reasoning which supported the one view 
would be equally strong to sustain the other. 

There is, of course, not the space here, nor is this 
the place, to detail again the various expressions of 
opinion which go to prove that this was the view taken 
of the character and effect of the act by which the 
Constitution was adopted. But we may take the time 
to point out what are the two strongest proofs that 
we are right upon this point. 

In the first place as evidencing this, there is the fact 
that there was a very general agreement in opinion 
that the new government should obtain the assent of 
the Peoples of the States, acting in their original sov- 
ereign capacity in conventions convened for that pur- 
pose. It was conceded at that time by all, or almost 
all, that for the establishment of a league or confed- 
eracy, such as had been created by the Articles, the 

24 



THE NATURE OF THE AMERICAN STATE 

existing state governments were fully competent, but 
that when it came to the establishment of a Constitu- 
tion, — the creation of a new political sovereignty,— a 
legitimate basis could only be found in the popular 
sovereignty upon which all political authority was 
believed ultimately to rest. In the Constitutional 
Convention, on July 23, Madison said that " he 
considered the difference between a system founded 
on the legislatures only, and one founded on the 
people, to be the true difference between a league 
or treaty, and a constitution." Rufus King declared 
a popular ratification to be the surest way of dis- 
pelling ''all doubts and disputes concerning the le- 
gitimacy of the new constitution." In other words, 
it was argued, that if this popular ratification were ob- 
tained, the fact that the new Constitution was to rest 
upon the assent of a less number of States than that 
provided for by the existing Articles of Confedera- 
tion, would not be material, for the original source 
of all political legitimacy would have been appealed 
to and its approval obtained. As Marshall said in 
McCulloch V. Maryland, "To the formation of a 
league such as was the Confederacy, the state sover- 
eignties were clearly competent. But when 'in order 
to form a more perfect union,' it was deemed neces- 
sary to change this alliance into an effective govern- 
ment, possessing great and sovereign powers and 
acting directly on the people, the necessity of refer- 
ring it to the people, and of deriving its powers 
directly from them, was felt and acknowledged by 
all." This, then, being the generally accepted theory 
of that time, the fact that such a popular foundation 

25 



THE AMERICAN CONSTITUTIONAL SYSTEM 

was sought, and generally conceded to be necessary, 
for the new Constitution, is in itself almost conclusive 
proof that a sovereign National State was intended 
to be created. 

In further verification, however, of the fact of an 
intended nationality is the negative circumstance 
that nowhere in the debates in the Federal Conven- 
tion, nor in the state-ratifying conventions, nor in the 
pamphlets which were put forth on both sides upon 
the question of ratification, did there occur a single 
assertion of the right of secession/ On the other 
hand, the opponents of the proposed Constitution at- 
tacked it as providing for the destruction of the in- 
dividual States, and for the creation of a consolidated 
government; and men like George Mason, Richard 
Henry Lee, and Patrick Henry predicted the dire op- 
pression of the Commonwealths by the federal power. 
George Mason in the Virginia Convention declared: 
''This paper [the Constitution] will be the great 

1 In its ratification of the constitution, Virginia declared : '^ Do, 
in the name and in the behplf of the people of Virginia, declare 
and make known, that the powers granted under the constitution, 
being derived from the people of the United States, may be as- 
sumed by them whensoever the same shall be perverted to their 
injury or oppression." New York in her ratification declared : 
" That the powers of government may be reassumed by the peo- 
ple whensoever it shall become necessary to their happiness." 
Rhode Island declared: ''That the powers of government may 
be reassumed by the people, whensoever it shall become necessary 
to their happiness." Some writers, e, g., Tucker, " Const. Law," 
p. 339, interpret these declarations as reservations of a legal right 
of secession from the Union. As a fact, however, it is clearly 
demonstrable that they were intended simply as declarations of 
the moral right of revolution in cases of oppression. 

26 



THE NATURE OF THE AMERICAN STATE 

charter of America; it will be paramount to every- 
thing. After having once consented to it we cannot 
recede from it." Richard Henry Lee, in his letters 
written over the signature '^The Federalist Farmer," 
asserted: ''It is to be observed that when the people 
shall adopt the proposed Constitution it will be their 
last and supreme act. It will be accepted not by the 
people of New Hampshire, Massachusetts, etc., but 
by the people of the United States ; and wherever this 
Constitution, or any part of it, shall be incompatible 
with the ancient customs, rights, the laws or the con- 
stitutions heretofore established in the United States, 
it will entirely abolish them and do them away." 
Surely it is reasonable to believe that, had it been 
generally held that under the proposed Constitution 
a legal right of withdrawal was still left the States, 
this belief Avould have been declared in answer to 
such emphatic utterances as these. 

Not only, however, were there no assertions at this 
time of a right of secession, but there were specific 
declarations to the contrary. A conspicuous instance 
of this was in Madison's reply to the query of Ham- 
ilton as to the propriety of "propositions of amend- 
ments upon condition that if they are not adopted 
within a limited time, the States shall be at liberty to 
withdraw from the Union." Madison's reply was: 
''My opinion is that a reservation of a right to with- 
draw, if amendments be not decided on under the 
form of the Constitution within a reasonable time, is 
a conditional ratification; that it does not make New 
York a member of the new Union, and consequently 
that she could not be received on that plan. Compacts 

27 



THE AMERICAN CONSTITUTIONAL SYSTEM 

must be reciprocal — this principle could not in such 
a case be preserved. The Constitution requires an 
adoption in toto and forever. It has been so adopted 
by the other States. An adoption for a limited time 
would be as ineffective as an adoption of some of the 
articles only. In short, any condition whatever must 
vitiate the ratification." 

This letter of Madison's was read to the New York 
convention, whereupon that convention ratified the 
Constitution unconditionally. The contents of this 
letter of course became also well known to the people 
of the other States, and, so far as we know, gave rise 
to no protests, such as surely would have arisen had 
the doctrines that it declared been contrary to those 
generally held.^ 

In connection with the assertion that it was gener- 
ally agreed, both by the supporters and opponents of 
the new Constitution, that a National State was to be 
brought into being, we must also remember that, as 
appears by overwhelming evidence, the men of those 
times were practically unanimously of the opinion 
that it was perfectly possible to create a genuine 
National State that would, within its own limited 
sphere, be absolutely and truly sovereign; and, at the 

1 The significant fact is to be noticed that in this very letter 
which contains this emphatic denial of this reserved right of 
withdrawal in the State, is employed a phraseology that clearly 
indicates the presence in Madison's mind of the idea that the 
States are to be the ratifying parties to the new instrument of 
government. If the adoption be conditional New York will not 
become ^'a member of the new Union;" "Compacts must be 
reciprocal;" ''It has been so adopted by the other States," are 
the phrases used. 

28 



THE NATURE OF THE AMERICAN STATE 

same time, to preserve the several member States as 
true States which would be, within their respective 
spheres, equally sovereign and independent. In other 
words, to the theorists of 1789 there seemed no diffi- 
culty whatever in a divided sovereignty, and there- 
fore, in the existence of a sovereign National State 
composed of constituent sovereign States.^ 

We must believe that it did not wholly escape the 
constitutional fathers that, ultimately, there must be 
some single source of the political authority both of 
the National State and of its member States. They 
deemed, however, this logical necessity satisfied by 
asserting in general terms that all right to political 
rule is derived from the people, without clearly stat- 
ing whether by the people they meant the citizen 
bodies of the thirteen States, severally considered, or 
the whole American populus conceived as a single 
body politic. Thus, instead of giving any real answer 
to the question as to the final location of sovereignty 
in America, they merely pushed the problem one step 
further bacj^ and there left it as undetermined as 
before. This, however, was not a conscious, deliberate 
evasion of the difficulty as Small and Walker would 
have us believe. It was a clear self-deception, — a self- 
deception from which Americans were very slowly re- 
leased, for even after serious conflicts had arisen 
between the Federal Government and the individual 
Commonwealths, and the former had clearly demon- 
strated its paramountcy, both nationalists and par- 
ticularists long continued to speak of a division of 

1 For the evidence as to the generalness with which this view was 
held, see Merriam's " History of American Theories," Chap. vii. 

29 



THE AMERICAN CONSTITUTIONAL SYSTEM 

sovereignty between federal and state governments. 
It was not, indeed, until the time of the Calhoun- 
Hayne- Webster debate that the indivisibility of sov- 
ereignty was definitely put forward. Even this, how- 
ever, did not put an end to the theory. It continued 
to figure in our political thought until the outbreak 
of the Civil War, when it received its last unfortunate 
application at the hands of Buchanan when he as- 
serted that, though the individual States had not the 
legal right of secession, the National Government had 
not the constitutional power to prevent them from 
doing so. 

By adopting the explanation which we have just 
given of the motives and intentions of those who 
framed and adopted our Constitution, we seem to be 
thrown into the peculiar position of maintaining that 
the people desired and thought that they were oH- 
taining a result that we now know to have been a 
logical impossibility— namely, the creation of a le- 
gally indissoluble Union by an agreement between 
sovereign States — one in which not simply the exer- 
cise of sovereignty but the power itself should be 
divided between the National State and its member 
Commonwealths. What then, as a matter of fact, are 
we to say was the nature of the actual product? If 
this was simply a question as to which should deter- 
mine, the intention, or the means employed, we should 
not hesitate to say that the intention should be con- 
trolling. If that ani7nus was there, upon which is 
based the true origin of a State, then, by whatever 
means this subjective condition obtained objective 
manifestation, we should be justified in declaring 

30 



THE NATURE OF THE AMERICAN STATE 

that a National State was created; and in asserting 
that, though the people thought themselves to be act- 
ing as States, yet, in truth, the fact that they were 
seeking the establishment of a political power which 
was to destroy the existence of those States as sover- 
eign bodies, necessarily produced the result that the 
participation of the States in the establishment of the 
new government was no more than a formal one, and 
that, in reality, their governmental organs were used 
by a single People for the performance of a truly Na- 
tional act. But the difficulty is, as we have already 
learned, that though the people intended to create, 
and thought that they were creating a National State, 
they also believed that they were not sacrificing the 
sovereignty of their several Commonwealths. 

These, then, being the facts, and remembering that 
the creating cause of a State is that there exists in a 
community a "General Will" demanding political 
unity, it plainly appears that the answer to the ques- 
tion whether or not there was created, or rather ex- 
isted, in 1789 a single sovereign People, turns upon 
the point whether at that time there was a stronger 
desire for national unity than for the continued sov- 
ereignty of the several States. In other words, the 
question is : If the fact had been clearly presented to 
the people thai sovereignty cannot be divided, and 
that, therefore, they must choose between National 
Sovereignty and absolute State Sovereignty, which 
would they then have selected? To such a hypothet- 
ical question there cannot of course be given an ab- 
solutely certain reply. We think, however, that the 
preponderating opinion of historians of all schools, 

31 



THE AMERICAN CONSTITUTIONAL SYSTEM 

nationalistic and particularistic, is that had this al- 
ternative been thus sharply outlined in 1789, the 
proposed Constitution would have failed of ratifica- 
tion by a sufficient number of States to enable it to go 
into operation. For, as it was, it was only with the 
greatest difficulty that its adoption was secured. 
This being so, we are, as a consequence, almost forced 
to say that the adoption of the Constitution and the 
establishment of a government according to its pro- 
visions was not a demonstration of the fact that a 
truly sovereign, national State had come into being. 
At first thought this seems to be a very important 
admission,— one that goes very far toward support- 
ing the claims of the States' Rights School as made 
from time to time during our history since 1789. But 
let us see to what extent this is the necessary result. 
Recurring to our analysis of the nature of sovereignty, 
we remember that, though we say that the force that 
creates a State, and therefore its sovereignty, is the 
General Will of a People demanding political unity, 
the State itself cannot be said really to exist until this 
will has become objectively manifested, that is, has 
found expression in the creation of some sort of gov- 
ernmental organization through which its desires may 
be satisfied. So also, reasoning in the other direction, 
we say that so soon as a People ceases to yield general 
obedience to the commands of a given political or- 
ganization, and thus in deed and fact no longer recog- 
nizes its sovereignty, and, indeed, renders obedience 
to the laws of another political power, the old sover- 
eignty is destroyed and a new one has taken its place. 
In such a case, however peaceably and gradually the 
transition may have been effected, the change must be 

32 



THE NATURE OF THE AMERICAN STATE 

held to have been illegal and revolutionary in char- 
acter when looked at from the standpoint of the old 
State ; for there is no legal means by which the sover- 
eignty of one or several bodies politic may be trans- 
ferred to a new political entity. In fine, sovereignty, 
though itself the source of all law, is not itself 
founded upon law. It is based wholly upon fact, and 
its existence has to be demonstrated as such. Bearing 
in mind, then, this fact, and granting that the Con- 
stitution at the time of its adoption, created, and was 
intended to create, a Confederacy, it may properly be 
argued that there soon came into being a national 
feeling which created a national sovereignty that was 
objectively realized both in explicit declaration and in 
fact. Adopting this reasoning it may be said that the 
circumstance that the Constitution was so indefinitely 
worded that it could be interpreted as creating a Na- 
tional State, without doing too much violence to the 
meaning of its terms, enabled the people, through 
Congress and the Supreme Court, to satisfy their 
desire for political unity without a resort to open 
revolutionary means. Still, it must be conceded by 
those who take this view, that however peaceably and 
gradually the transformation to a Federal State was 
effected, the change was necessarily revolutionary in 
character. It does not help them to point to the 
manner in which its steps were clothed in apparent 
legal form. In our next chapter, then, we shall con- 
sider some of the events following the inauguration of 
the new government which tend to demonstrate that, 
however confederate in character the Union may have 
been at the time of its creation, a National Federal 
State soon came into being. 
3 33 



CHAPTER III 

THE DEVELOPMENT OF NATIONAL SOVEREIGNTY 

We are warranted in assuming that, from the very 
beginning of the new regime, the great improvement 
both in political and commercial conditions must have 
tended to impress the people generally with the ad- 
vantages of an effective central government. Such 
measures of national legislation as the Impost and 
Navigation Acts, the reenactment of the Northwest 
Ordinance, the assumption of state debts, the estab- 
lishment of a National Bank, all adopted within a 
few years after the establishment of the new central 
authority, operated greatly to increase the actual in- 
fluence and power of the Federal Government. In- 
cidents such as the successful suppression of the so- 
called "Whisky Rebellion" in Pennsylvania must 
also have had a considerable weight in the same direc- 
tion. None of these exercises of the federal power, 
however, with the possible exception of the last, influ- 
ential though they may have been to evoke the senti- 
ment that was needed to create and maintain a na- 
tional State, involved any explicit assumption of a 
federal authority necessarily inconsistent with the 
continued existence of the sovereignty of the indi- 
vidual States. 

34 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

For such decisive declarations we must turn to the 
decisions of the Supreme Court of the United States. 
Seizing upon three generally worded clauses of the 
Constitution this tribunal, presided over by justices, 
the majority of whom were nationalistic in sentiment, 
soon gave to the federal power such an interpretation 
as clearly to demonstrate that henceforth sovereignty 
in the American State was to reside in the Union. The 
three constitutional clauses thus utilized were the fol- 
lowing : 

1. "This Constitution, and the laws of the United States 
which shall be made in pursuance thereof; and all treaties 
made, or which shall be made, under the authority of the United 
States, shall be the supreme law of the land ; and the judges 
in every State shall be bound thereby, anything in the Con- 
stitution or laws of any State to the contrary notwithstand- 
ing." (Art. VI, Sec. 2.) 

2. " The judical power of the United States shall be vested 
in one Supreme Court, and in such inferior courts as the Con- 
gress may from time to time ordain and establish. . . . The 
judicial power shall extend to all cases, in law and equity, 
arising under this Constitution, the laws of the United States, 
and treaties made, or which shall be made, under their au- 
thority" (Art. Ill, Sees. 1 and 2.) 

3. " The Congress shall have power ... to make all laws 
which shall be necessary and proper for carrying into execu- 
tion the foregoing powers, and all other powers vested by 
this Constitution in the Government of the United States, or 
in any department or office thereof." (Art. I, Sec. 8.) 

The first of these clauses was made to mean that 
whatever exercise of federal power the Supreme Court 
of the United States should decide to be consti- 

35 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tutional, the people and governments of the individual 
States should accept as legally binding, and whatever 
acts of the States it should hold unconstitutional they 
should consider as null and void. The second of these 
clauses was made to give to the federal court full 
jurisdiction to consider all questions of conflict be- 
tween the federal and state authorities. The third 
was employed to enable that tribunal to sanction the 
exercise by the Federal Government of a range of 
powers sufficient to enable it effectively to perform its 
functions as a sovereign, National State. 

One of the very first laws passed by the federal leg- 
islature was the famous Judiciary Act which created 
the inferior federal courts authorized by the Constitu- 
tion and outlined both their fields of jurisdiction 
and the appellate jurisdiction of the Supreme Court. 
To the importance of the twenty-fifth section of this 
Act which provided for a final review by that tri- 
bunal of all cases decided in the highest courts of the 
several Commonwealths in which should be drawn into 
question the relative competences of the Union and of 
the Commonwealths, and in which the decisions of the 
States' courts should be adverse to the federal power, 
we shall later refer. 

A liberal construction by Congress and the Execu- 
tive of the powers of the Federal Government began 
almost immediately after the adoption of the Consti- 
tution, as was especially shown in the establishment 
in 1791 of a National Bank and in the appellate 
jurisdiction granted the Supreme Court. The consti- 
tutionality of the exercise of these powers was vigor- 
ously denied by those who objected to such an increase 

36 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

of federal power and influence, but the first open 
threat of resistance to the National Government was 
in 1793. This was brought about by the assumption 
by the federal Supreme Court of jurisdiction to hear 
and determine a suit brought against the State of 
Georgia by a citizen of another State, and the actual 
rendition by it of a judgment against that State 
(Chisholm v. Georgia, 2 Dallas, 419). Many of the 
States took immediate alarm at this decision, not sim- 
ply because they had debts the collection of which 
might thus be enforced against them, but upon the 
political ground that thus to hold them amenable to 
suit was a practical denial of that sovereignty which 
they claimed still to possess. That they were fully 
justified in attaching this significance to the decision 
is shown in the words of Justice James Wilson, who in 
the opinion which he rendered in the case, said : ' ' This 
is a case of uncommon magnitude. One of the parties 
to it is a State; certainly respectable, claiming to be 
sovereign. The question to be determined is, whether 
this State, so respectable, and whose claim soars so 
high, is amenable to the jurisdiction of the Supreme 
Court of the United States 1 This question, important 
in itself, will depend on others, more important still ; 
and may, perhaps, be ultimately resolved into one no 
less radical than this— 'do the people of the United 
States form a nation?' " Answering this question, 
Wilson declared: "As to the purposes of the Union 
. . . Georgia is not a sovereign State." 

After the rendition of this decision the State of 
Georgia declared her intention of refusing to allow^ it 
to be enforced, and passed a law threatening death 

37 



THE AMERICAN CONSTITUTIONAL SYSTEM 

to any one who should attempt its execution. Actual 
collision between the state and the federal authority, 
however, was avoided by the adoption of a constitu- 
tional amendment declaring that the judicial power of 
the United States should not be construed to extend 
to suits brought against the States by citizens of other 
States. 

From this dispute the Federal Government emerged 
clearly the winner, it being established that only by 
an express constitutional amendment were the States 
to be released from being dragged unwillingly to the 
bar of a federal tribunal. 

In 1794 came the next threat of resistance to the 
Federal Government. A considerable number of the 
people of western Pennsylvania refused to pay the 
excise upon whisky levied by an act of Congress of 
1791. At the call of the President of the United 
States the militia of Pennsylvania took the field, 
whereupon, overawed by this display of force, the re- 
sistance to the execution of the federal law melted 
away. Thus again was federal authority maintained. 

In 1798-99 were issued by the legislatures of two 
of the States Resolutions asserting that the Federal 
Union was based upon a compact between the States, 
and very nearly, if not quite, asserting the doctrine 
that a State had the right to declare void and refuse 
obedience to laws which it should deem unwarranted 
by the terms of that compact. The effect of these 
Virginia and Kentucky Resolutions was, however, to 
strengthen the national theory, for no other State 
recognized their doctrines as correct, but, upon the 
contrary, most of the other Commonwealths by resolu- 

38 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

tion explicitly declared them dangerous or erroneous. 
Furthermore, the very acts of Congress against which 
these Resolutions were directed were afterwards en- 
forced in Virginia without resistance, and that, too, in 
a most offensive manner.^ 

In 1801 the strict constructionist Republicans under 
Jefferson came into power, but, so strong was the na- 
tional drift that his administration witnessed the an- 
nexation of the vast Louisiana Territory and the 
enactment of the Cumberland Road Bill — both mea- 
sures requiring for their constitutionality a very elas- 
tic interpretation of the powers of the Federal Gov- 
ernment. 

In 1803 came the decision of the Supreme Court of 
the United States in the famous case of Marbury v. 
Madison (1 Cr., 137), in which, for the first time, an 
act of Congress was explicitly declared unconstitu- 
tional and therefore void of legal force. The great 
significance of the decision consisted not simply in 
that it upheld the power of the federal judiciary as 
opposed to that of the federal legislature, but that it 
pointed out that the tribunal to which resort should be 
had for an authoritative and final decision in the case 
of a federal enactment of doubtful constitutionality 
was not to the member States of the Union but to the 
federal Supreme Court. 

In this case the imperative character of the Consti- 
tution was declared in the following words: "That 
the people have an original right to establish for their 

1 For example, in the trial and conviction of Callender. For 
his alleged unjudicial conduct in this case the presiding federal 
judge, Chase, was afterwards impeached but acquitted. 

39 



THE AMERICAN CONSTITUTIONAL SYSTEM 

future government such principles as, in their opinion, 
shall most conduce to their own happiness, is the basis 
on which the whole American fabric has been erected. 
The exercise of this original right is a very great ex- 
ertion, nor can it nor ought it to be frequently re- 
peated. The principles, therefore, so established, are 
deemed fundamental. And, as the authority from 
which they proceed is supreme, and can seldom act, 
they are designed to be permanent. This original 
and supreme will organizes the government and as- 
signs to different departments their respective powers. 
It may either stop here or establish certain limits not 
to be transcended by those departments. The gov- 
ernment of the United States is of the latter descrip- 
tion. The powers of the legislatures are defined and 
limited ; and that those limits may not be mistaken or 
forgotten, the Constitution is written. To what pur- 
pose are powers limited, and to what purpose is that 
limitation committed to writing, if these limitations 
may, at any time, be passed by those intended to be 
restrained 1 ' ' 

In the next year, 1804, the Supreme Court, in the 
case of The United States v. Fisher (2 Cr., 358), laid 
down in the clearest manner possible the doctrine 
that the Federal Government, in the exercise of the 
powers specifically granted to it, is not restricted to 
the employment of simply those means that are indis- 
pensably necessary, but may make use of any means 
that are calculated to assist in attaining an end speci- 
fically authorized by the Constitution. ''It would be 
incorrect and would produce endless difficulties," says 
the Court, "if the opinion should be maintained that 

40 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

no law was authorized which was not indispensably 
necessary to give effect to a specified power. Where 
various systems might be adopted for that purpose, it 
might be said, with respect to each, that it was not 
necessary because the end might be reached by other 
means. Congress must possess the choice of means, 
and must be empowered to use any means which are, 
in fact, conducive to the exercise of a power granted 
by the Constitution." 

Five years later, in 1809, was decided the case of 
The United States v. Peters (5 Cr., 115),— a case 
which involved a direct contest of power and authority 
between the Federal Government and the State of 
Pennsylvania. A vessel, the sloop Active, had been 
condemned and sold in 1777 as a prize by the admi- 
ralty court of Pennsylvania. Upon appeal to the 
Committee of Appeals of the Continental Congress 
this decision had been overruled and the state mar- 
shal forbidden to pay over the proceeds to the state 
court. Notwithstanding this order, however, the 
money was paid over, and ultimately found its way 
into the state treasury. In 1803 suit was brought in 
a federal District Court to recover this money from 
the estate of the state treasurer, Rittenhouse, then 
deceased, and judgment was obtained. Thereupon the 
legislature of Pennsylvania passed an act denying the 
authority of the federal court in the premises, and 
directing the state executive to prevent, by force, if 
necessary, the execution of the federal decree. Re- 
peated efforts to obtain a peaceful settlement having 
failed, a writ of mandamus was asked for from the 
Supreme Court of the United States to compel the 

41 



THE AMERICAN CONSTITUTIONAL SYSTEM 

district judge to enforce his judgment. In passing 
upon the request thus raised, Chief Justice Marshall 
clearly recognized that the very existence of the Na- 
tional Government as a competent central authority 
was involved. ''If," he said, ''the legislatures of the 
several States may, at will, annul the judgments of 
the courts of the United States, and destroy the rights 
acquired under these judgments, the Constitution it- 
self becomes a solemn mockery; and the Nation is 
deprived of the means of enforcing its laws by the 
instrumentality of its own tribunals. So fatal a re- 
sult must be deprecated by all, and the people of 
Pennsylvania, not less than the citizens of every other 
State, must feel a deep interest in resisting principles 
so destructive of the Union and in asserting conse- 
quences so fatal to themselves." "The act in ques- 
tion, ' ' continued the Chief Justice, ' ' does not, in terms, 
assert the universal right of the State to interpose in 
every case whatever; but assigns, as a motive for its 
interposition in this particular case, that the sentence, 
the execution of which it prohibits, was rendered in a 
cause over which the federal courts have no jurisdic- 
tion. If the ultimate right to determine the juris- 
diction of the courts of the Union is placed by the 
Constitution in the several state legislatures, then 
this act concludes the subject; but if that power 
necessarily resides in the supreme judicial tribunal of 
the nation . . . the act of Pennsylvania, with whatever 
respect it may be considered, cannot be permitted to 
prejudice the question." After examining and re- 
futing the claim that the federal district court did not 
have jurisdiction, the Chief Justice declared that 

42 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

"consequently the State of Pennsylvania can possess 
no constitutional right to resist the legal process which 
may be directed in this cause." "It will be readily 
conceived," he concluded, "that the order which this 
court is enjoined to make by the high obligations of 
duty and of law, is not made without extreme regret 
at the necessity which has induced the application. 
But it is a solemn duty, and therefore must be 
performed. A peremptory mandamus must be 
awarded." 

The preeminent importance of this decision of a case 
growing out of the first open resistance of a State to 
federal authority has justified the foregoing extensive 
quotation from it. In obedience to this order, the dis- 
trict judge issued his writ of attachment. W^hen, 
however, it was attempted to be served, the marshal 
found the Rittenhouse residence surrounded by state 
militia which had been called out by the Governor in 
obedience to the act of the legislature. The marshal 
therefore withdrew and summoned a posse comitatus 
of two thousand men. Appeal was then made by the 
Governor of Pennsylvania to the President of the 
United States to prevent the execution of a judgment 
founded, it was declared, upon a usurpation of power. 
Madison, however, declined to interfere, and the 
Pennsylvania legislature thereupon gave way and 
the money was paid over. Later the Federal Govern- 
ment still further vindicated its authority by indict- 
ing, and securing the conviction of, the general of the 
Pennsylvania militia and his men who had resisted 
the service of the federal writ. 

The State of Pennsylvania, thus defeated, suggested 
43 



THE AMERICAN CONSTITUTIONAL SYSTEM 

that the federal Constitution be so amended as to pro- 
vide that an impartial tribunal be established for the 
trial of disputes between individual States and the 
United States. Upon this proposal being sent to Vir- 
ginia, both houses of the legislature of that State 
unanimously condemned it and declared that "a tri- 
bunal is already provided by the Constitution of the 
United States, to wit, the Supreme Court, more emi- 
nently qualified, from their habits and duties, from 
the mode of their selection, and from their tenure of 
office, to decide the disputes aforesaid, in an enlight- 
ened and impartial manner, than any other tribunal 
that could be created." 

The facts of this famous case, together with the 
explicit utterances of the Supreme Court, certainly 
went very far toward demonstrating that already 
sovereignty lay in the United States. 

In 1810 a state law was again declared unconstitu- 
tional and therefore void,^ this time upon the ground 
that it impaired the obligation of contracts, a charac- 
teristic that has since operated to invalidate well on 
to a hundred state acts. 

In 1819 was decided the case of McCulloch v. Mary- 
land (4 Wh., 316), which, though it can scarcely be 
said to have involved the enunciation of any abso- 
lutely new constitutional principles is yet important; 
first, because of the liberality with which it was de- 
clared that the implied powers of the Federal Gov- 
ernment should be construed; second, because of the 
explicitness with which it was asserted that a State 
may not interfere in any way, by taxation or other- 
1 Fletcher v. Peck, 6 Cr., 87. 

44 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

wise, with the exercise by the Federal Government of 
any of its powers ; and third, because of the reasoning 
by which these two principles were sought to be 
proved. 

The principle of the loose construction of the pow- 
ers of Congress was declared in the following lan- 
guage. After speaking of the powers expressly given 
to Congress by the Constitution, Marshall said : "It 
must have been the intention of those who gave these 
powers to insure, as far as human prudence could in- 
sure, their beneficial execution. This could not be 
done by confiding the choice of means to such narrow 
limits as not to leave it in the power of Congress to 
adopt any which might be appropriate and which were 
conducive to the end. This provision is made in a 
Constitution intended to endure for ages to come, 
and, consequently, to be adapted to various crises of 
human affairs. To have prescribed the means by 
which government should in all future time execute 
its powers would have been to change entirely the 
character of the instrument, and give it the properties 
of a legal code. It would have been an unwise at- 
tempt to provide by immutable rules for exigencies 
which, if foreseen at all, must have been seen dimly, 
and which can be best provided for as they occur. To 
have declared that the best means shall not be used, 
but those only without which the power given would 
be nugatory, would have been to deprive the executive 
of the capacity to avail itself of experience, to exercise 
its reason, and to accommodate its legislation to cir- 
cumstances. . . . Let the end be legitimate, let it be 
within the scope of the Constitution, and all means 

45 



THE AMERICAN CONSTITUTIONAL SYSTEM 

which are appropriate, which are plainly adapted to 
that end, which are not prohibited, are consistent with 
the letter and spirit of the Constitution, are consti- 
tutional." 

The case of McCulloch v. Maryland had arisen out 
of an attempt on the part of the State of Maryland 
to tax the United States Bank which the Federal Gov- 
ernment had chartered to assist it in the conduct of 
its fiscal affairs. Having demonstrated the constitu- 
tionality of the establishment of this institution, the 
attempt of a State to control it, directly or indirectly, 
by taxing or otherwise, was explicitly denied by the 
Court in the following words: "The government of 
the United States, though limited in its powers, is su- 
preme within its sphere of action. . . . The nation, on 
those subjects on which it can act, must necessarily 
bind its component parts. . . . The sovereignty of a 
State extends to everything which exists by its own 
authority, or is introduced by its permission ; but does 
it extend to those means which are employed by Con- 
gress to carry into execution powers conferred on that 
body by the people of the United States? We think 
it demonstrable that it does not. . . . The court 
has bestowed on this subject the most deliberate con- 
sideration. The result is a conviction that the States 
have no power, by taxation or otherwise, to retard, 
impede, burden, or in any manner control the opera- 
tions of the constitutional laws enacted by Congress 
to carry into execution the powers vested in the Gen- 
eral Government. This is, we think, the unavoidable 
consequence of that supremacy which the Constitution 
has declared." 

46 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

Turning now to the reasoning by which the Court 
sustained the positions it took, we find a very strongly 
nationalistic interpretation given both to the process 
by which the federal Constitution was adopted and to 
the character of the government provided for by it. 
After adverting to the fact that the counsel for the 
State of Maryland had deemed it of importance, in 
the construction of the Constitution, to consider that 
instrument ' ' not as emanating from the people, but as 
the act of sovereign and independent States," and 
the powers of the General Government as '' delegated 
by the States, who alone are truly sovereign, and 
must be exercised in subordination to the States, 
who alone possess supreme dominion," Marshall de- 
clared: "It would be difficult to sustain this propo- 
sition. The convention which framed the Consti- 
tution was, indeed, elected by the state legislatures. 
But the instrument, when it came from their hands, 
was a mere proposal, without obligation, or preten- 
sions to it. It was reported to the then existing 
Congress of the United States with a request that 
it might 'be submitted to a convention of delegates, 
chosen in each State, by the people thereof, under 
the recommendation of its legislature for their as- 
sent and ratification.' This mode of proceeding was 
adopted; and by the convention, by Congress, and by 
the state legislatures, the instrument was submitted to 
the people. They acted upon it, in the only manner 
in which they can act safely, effectively, and wisely 
on such a subject, by assembling in convention. It is 
true they assembled in their several States, and 
where else could they have assembled? No political 

47 



THE AMERICAN CONSTITUTIONAL SYSTEM 

dreamer Avas ever wild enough to think of breaking 
down the lines which separate the States, and of com- 
pounding the American people into one common mass. 
Of consequence, when they act, they act in their 
States. But the measures they adopt do not, on that 
account, cease to be the measures of the people them- 
selves, or become the measures of the State govern- 
ments. From these conventions the Constitution de- 
rives its whole authority. . . . The assent of the States, 
in their sovereign capacity, is implied in calling a con- 
vention, and thus submitting that instrument to the 
people. But the people were at perfect liberty to 
accept or reject it ; and their act was final. It required 
not the affirmance, and could not be negatived, by 
the state governments. The Constitution when thus 
adopted was of complete obligation, and bound the 
state sovereignties." 

In 1816 was decided by the Supreme Court of the 
United States the case of Martin v. Hunter's Lessee 
(1 Wh., 304), in which Justice Joseph Story prepared 
the opinion, and, in 1821, the case of Cohens v. Vir- 
ginia (6 AVh., 264), in which Marshall spoke for the 
Court. These two cases turned upon the efforts of 
the State of Virginia to release herself from what she 
deemed the unconstitutional humiliation of having de- 
cisions of her highest court reviewed in the Su- 
preme Court of the United States, when the decisions 
of her court were adverse to alleged federal rights. 
Appeals in such cases from the highest courts of the 
States to the federal tribunal had been provided for, 
as has been before noted, by the famous twenty-fifth 
section of the Judiciary Act passed in 1789. 

48 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

The constitutionality of this section had been, and 
later still was, strenuously resisted by the upholders 
of so-called ' 'States '-Rights, " ^ and well they might 
resist it, for to give to federal judges the final decision 
in all cases of conflict between state and federal rights, 
even when such conflicts were between citizens of the 
same State and litigated in the courts of that State, 
was certainly to ascribe a paramountcy to the National 
Government. Calhoun saw this clearly enough and 
declared: ''The effect of this is to make the govern- 
ment of the United States the sole judge, in the last 
resort, as to the extent of its powers, and to place the 
States and their separate governments and institu- 
tions at its mercy. It would be a waste of time to 
undertake to show that an assumption that would de- 
stroy the relation of coordinates between the govern- 
ment of the United States and those of the several 
States— which would enable the former, at pleasure, 
to absorb the reserved powers and to destroy the in- 
stitutions, social and political, which the Constitution 
was ordained to establish and protect— is wholly in- 
consistent with the federal theory of the government, 
though in perfect accordance with the national theory. 
Indeed, I might go further and assert that it is, of 
itself, all sufficient to convert it into a national, con- 
solidated government. ' ' 

"The government of the United States," said the 
counsel for Virginia in the case of Cohens v. Virginia, 
"operates directly upon the people, and not at all 
upon the state governments. The state governments 

1 See, for instance, Calhoun's "Discourse on the Constitution and 
Government of the United States," Works, I, 318-340. 

4 49 



THE AMERICAN CONSTITUTIONAL SYSTEM 

are not subject to this government. The people are 
subject to both governments. . . . The appellate juris- 
diction conferred by the Constitution on the Supreme 
Court is merely authority to revise the decisions of the 
inferior courts of the United States. . . . Appellate ju- 
risdiction signifies judicial power over the decisions of 
inferior tribunals of the same sovereignty. . . . Con- 
gress is not authorized to make the supreme court or 
any other court of a State an inferior court. . . . The 
inferior courts spoken of in the Constitution are mani- 
festly to be held by federal judges. The judicial power 
to be exercised is the judicial power of the United 
States ; the errors to be corrected are those of that ju- 
dicial power ; and there can be no inferior courts exer- 
cising the judicial power of the United States other 
than those constituted and ordained by Congress. . . . 
If it had been intended to give appellate jurisdiction 
over the state courts, the proper expressions would 
have been used. There is not a word in the Constitu- 
tion that goes to set up the federal judiciary above 
the state judiciary. . . . Can it be believed that it was 
meant that the greatest, the most consolidating of all 
the powers of this government, should pass by an un- 
necessary implication? " 

In both the cases of Cohens v. Virginia and of Mar- 
tin V. Hunter's Lessee the Supreme Court flatly re- 
pudiated this reasoning. In the latter it declared: 
"It is the case . . . not the court, that gives the 
jurisdiction. . . . The courts of the United States 
can, without question, revise the proceedings of the 
executive and legislative authorities of the States, 
and if they are found to be contrary to the Consti- 

50 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

tution may declare them to be of no legal validity. 
Surely, the exercise of the same right over judicial 
tribunals is not a higher or more dangerous act of 
sovereign power." 

In the opinion rendered in the case of Cohens v. 
Virginia, in which the whole question had been re- 
argued, speaking with reference to the attempt of 
Virginia to punish an individual for committing an 
act permitted by a federal statute, Marshall asserted 
the sovereignty of the National Government in the 
following emphatic language. ''If it could be 
doubted," he declared, ''whether from its nature it 
[the National Government] were not supreme in all 
cases where it is empowered to act, that doubt would 
be removed by the declaration that 'this Constitution 
and the laws of the United States which shall be made 
in pursuance thereof, and all treaties made or which 
shall be made under authority of the United States, 
shall be the supreme law of the land ; and the judges 
in every State shall be bound thereby, anything in the 
constitution or laws of any State to the contrary not- 
withstanding.' This is the authoritative language of 
the American people, and, if the gentlemen please, of 
the American States. . . . The people made the Consti- 
tution and the people can unmake it. . . . But this su- 
preme and irresistible power to make or to unmake 
resides only in the whole body of the people; not in 
any subdivision of them. The attempts of any of the 
parts to exercise it is usurpation, and ought to be re- 
pelled by those to whom the people have delegated the 
power of repelling it. . . . The framers of the Consti- 
tution were indeed unable to make any provisions 

51 



THE AMERICAN CONSTITUTIONAL SYSTEM 

which should protect that instrument against a gen- 
eral combination of the States, or of the people for its 
destruction ; and, conscious of this inability, they have 
not made the attempt. But they were able to provide 
against the operation of measures adopted in any one 
State/ whose tendency might be to arrest the execution 
of the laws; and this it was the part of wisdom to 
attempt. We think they have attempted it." 

In 1824, in Osborn v. Bank of the United States 
(9 Wh., 738), the attempt of Ohio to tax the federal 
bank was declared unconstitutional. In 1829, in Wes- 
ton V. Charleston (2 Pet., 449), a municipal tax on 
stock of the United States held by inhabitants of 
the city of Charleston was held improper. In 1824, 
in the case of Gibbons v. Ogden (9 Wh., 1), was begun 
that long line of decisions which has established the 
power of the United States to regulate interstate com- 
merce free from state interference— an authority the 
exercise of which has done so much to increase the 
actual power and influence of the National Govern- 
ment. In this case a law of the State of New York 
was held void. 

In 1823 a law of Kentucky was held of no force by 
the federal court (Green v. Biddle, 8 Wh., 1), and in 
1830 a law of Missouri received similar treatment 
(Craig V. Missouri, 4 Pet., 410). 

We may stop now for a moment to summarize the 
light that forty years of actual experience had thrown 
upon the question as to the character of the General 
Government established in 1789. Certainly it must 
be granted that the officially declared views and the 
realized facts had demonstrated the absolute sover- 

52 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

eignty of the federal power so conclusively as properly 
to place that question outside of the sphere of de- 
batable political theory. Not only had the supre- 
macy of the General Government in the exercise of 
its express and implied powers been stated and en- 
forced in the most unqualified manner, but, more im- 
portant still, and in itself practically decisive of the 
question as to the location of sovereignty in our fed- 
eral system, the principle had been authoritatively 
asserted and maintained that the settlement of all 
disputes as to the relative competences of the state and 
federal governments, whether originating in the state 
or federal courts, was placed finally and absolutely 
in the hands of the supreme judicial organ of the 
federal power. The reasoning and the conclusions of 
the Virginia and Kentucky Resolutions had been re- 
pudiated by the other States, and in one form or 
another the federal supremacy had been vindicated 
as against the efforts at interference, resistance, or 
protests of Pennsylvania, Kentucky, Virginia, Mary- 
land, Ohio, New York, South Carolina, and Massa- 
chusetts.^ 

The only instance up to this time in which the 
federal power had been successfully resisted by the 
authorities of a State was that in which Georgia had 
refused, and had not been compelled, to be guided by 
federal treaties and law governing the rights of the 
Creek and Cherokee Indians living within her borders. 

1 Massachusetts' protests against the Embargo Act were disre- 
garded. In M'Kim v. Vorhies, 7 Cr., 279, the attempt of a 
Kentucky court to enjoin the enforcement of a judgment of a 
federal court was repelled. 

53 



THE AMERICAN CONSTITUTIONAL SYSTEM 

But this successful resistance to federal law was ren- 
dered possible not because of the actual or legal in- 
ability of the National Government to compel obedi- 
ence to its commands, but because of the refusal of 
the President to take the steps necessary for the en- 
forcement of the orders of the federal courts. 

In 1828 was enacted by Congress the Tariff Act 
which received the name "Tariff of Abominations" 
and which was considered extremely oppressive by 
the Southern States. The dissatisfaction thus aroused 
caused numerous threats of resistance and even of 
disunion. In December of 1828 the legislature of 
South Carolina adopted a declaration of principles, 
or "Exposition" as it was called, which had been 
written by John C. Calhoun, and which explicitly an- 
nounced the nullification doctrine. In several of the 
other States of the South the same doctrine was an- 
nounced. In 1830 came the famous debate in the 
United States Senate between Webster and Hayne. 
In 1832 the people of South Carolina assembled in 
convention and issued "an ordinance to nullify cer- 
tain acts of the Congress of the United States pur- 
porting to be laws." This ordinance went on to 
declare that "it shall not be lawful for any of the 
constituted authorities, whether of this State or of the 
United States, to enforce the payment of duties im- 
posed by the said acts within the limits of this State, ' ' 
and concluding with the statement that "we do fur- 
ther declare that we will not submit to the application 
of force on the part of the federal government to re- 
duce this State to obedience ; but that v/e will consider 
the passage by Congress of any act authorizing the 

54 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

employment of a military or naval force against the 
State of South Carolina, her constitutional authorities 
or citizens, or any act abolishing or closing the in- 
gress or egress of vessels to or from the said ports . . . 
as inconsistent with the longer continuance of South 
Carolina in the Union; and that the people of South 
Carolina will henceforth hold themselves absolved 
from all further obligation to maintain or preserve 
their political connection with the people of the other 
States ; and will forthwith proceed to organize a sepa- 
rate government, and do all other acts and things 
which sovereign and independent States may of right 
do.'' 

In pursuance of this ordinance the legislature of 
South Carolina passed laws which, it was said at the 
time, "legislated the Federal Government out of the 
State of South Carolina." 

Meanwhile South Carolina had sent her procla- 
mation of nullification to the legislatures of the other 
States. Without exception, where an answer to it was 
returned, it was in condemnation of the principles 
enunciated. This was no less true of the Southern 
than of the Northern States. Virginia, though as- 
serting her continued adherence to the doctrines of 
the Resolutions of 1798, declared that they did not 
sanction those put forward by South Carolina. North 
Carolina declared the doctrines of her sister State 
"revolutionary in character," and "subversive of the 
Constitution of the United States." Alabama char- 
acterized them as "unsound in theory and dangerous 
in practice— unconstitutional and essentially revolu- 
tionary;" and Mississippi stigmatized them as "con- 

55 



THE AMERICAN CONSTITUTIONAL SYSTEM 

trar^j to the letter and spirit of the Constitution and 
in direct conflict with the welfare, safety, and inde- 
pendence of every State in the Union," and declared 
that she would "indignantly frown upon the first 
dawning of every attempt to alienate any portion of 
our country from the rest, or to enfeeble the ties 
which link together the various parts." 

As is well known, the emphatic utterances and en- 
ergetic actions of President Jackson compelled South 
Carolina to withdraw from the position she had as- 
sumed. Thus once again the Federal Government 
vindicated its supremacy. 

From 1835 to the outbreak of the Civil War there 
can be no question but that the Supreme Court of the 
United States exerted a much less potent influence in 
solidifying and expanding the federal power than it 
had exercised during the thirty-five years preceding. 
During the two terms of office of Jackson, five vacan- 
cies occurred in the Supreme Court, among them that 
of the Chief-Justiceship to which Taney was ap- 
pointed in 1835. The effect of the new appointments 
upon the views of the Court was shown almost imme- 
diately. In the case of Briscoe v. Bank of Kentucky 
(11 Pet., 257), which had been argued just before the 
death of Marshall, the issue by the bank of bills of 
credit had been held unconstitutional. A rehearing 
being granted, however, and the case coming on for 
argument under Taney, the action of the bank was 
sustained and the previous decision reversed. This 
decision marked the beginning of a new era in the 
history of constitutional interpretation. Up to this 
time the court had upon all possible occasions upheld 

56 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

the General Government in the exercise of its powers, 
and had held the States strictly to the obligations im- 
posed upon them by the Constitution; now, however, 
it began, if anything, to lean the other w^ay. In Bris-' 
coe's case, departing from its former practice, by an 
extremely loose interpretation of a constitutional limi- 
tation that had been laid upon the States, it rendered 
practically nugatory one of the provisions of the Con- 
stitution. Other decisions, similarly favorable to 
States' Rights, followed. In the case of City of New 
York V. Miln (11 Pet., 102), a state law was sustained 
which might easily have been held an interference 
with the federal control of interstate commerce. In 
the Charles River Bridge Co. v. Warren Bridge Co. 
(11 Pet., 420), a doubtful State law was again up- 
held. In 1847 in a series of warmly contested cases 
known as the License Cases (5 How., 504) interpre- 
tations of the Commerce Clause favorable to the States 
were given. In Kentucky v. Dennison (24 How., 66), 
it was held that though the federal Constitution made 
it a duty of a State to surrender to another State a 
fugitive from justice from that State, there was no 
constitutional means by which the Federal Govern- 
ment could compel the performance of that duty. In 
all these cases the States were favored at the expense 
of the authority of the General Government. In 1845 
Justice Story wrote to a friend: ''I have been long 
convinced that the doctrines and opinions of the old 
court were daily losing ground, and especially those 
on great constitutional questions. New men and new 
opinions have succeeded. The doctrines of the Con- 
stitution, so vital to the country, which in former 

57 



THE AMERICAN CONSTITUTIONAL SYSTEM 

times received the support of the whole court, no 
longer maintain their ascendency. I am the last 
member now living of the old court, and I cannot con- 
sent to remain where I can no longer hope to see 
those doctrines recognized and enforced." Again, 
writing to Justice McLean, he said: ''There will not, 
I fear, ever, in our day, be any case in which a law 
of a State, or of Congress, will be declared uncon- 
stitutional; for the old constitutional doctrines are 
fast fading away, and a change has come over the 
public mind from which I augur little good." 

In 1841, in Prigg v. Pennsylvania (16 Pet., 539), a 
state law attempting the regulation of the return of 
fugitive slaves was held unconstitutional and void on 
the ground that this subject was wholly withdrawn 
from the control of the States. Taney, however, 
though concurring with the majority in holding un- 
constitutional the particular law in question, took 
pains to assert that there was no constitutional incom- 
petence on the part of the State to pass laws the in- 
tention and actual effect of which were to assist the 
Federal Government in the capturing and returning 
of fleeing negroes. 

Regarding the attitude of the Supreme Court dur- 
ing this period, the important fact is to be noticed 
that, though it threw the weight of its influence upon 
the side of the States so far as concerned a liberal in- 
terpretation of the powers reserved to them by the 
Constitution, not once, in the slightest measure, did 
it during these years, any more than it had done in 
the years preceding, intimate that the actual legal and 
political supremacy was not vested in the National 

58 



DEVELOPMENT OF NATIONAL SOVEREIGNTY 

Government. The position of Taney and of the court 
upon this point was clearly shown in the judgment 
rendered, and in the opinion delivered, in the case of 
Ableman v. Booth (21 How., 506), decided in 1859. 
The facts of this case were these : Booth had been tried 
in a lower federal court for a violation of the federal 
fugitive slave law of 1850, and had been found guilty 
and sentenced to imprisonment. The highest court of 
the State of Wisconsin, however, stepped in, disre- 
garded this judgment, and released the prisoner. Not 
only this, but it went on to declare that its decision, 
thus rendered, was subject to no appeal and was con- 
clusive upon all the courts of the United States; and 
when a writ of error from the United States Supreme 
Court directed to the Wisconsin court was issued, the 
clerk of the state court replied to it that he had been 
directed to make no return, and refused to make up 
and send a record of the case to the federal court. 
Thereupon the Attorney-General of the United States 
filed in the Supreme Court of the United States an 
uncertified record which it was ordered should be re- 
ceived as though returned by the clerk of the Wis- 
consin court. Having thus gotten the case before it, 
despite the resistance of the State, the decision of the 
Supreme Court thereupon was an emphatic condem- 
nation of the State's action. ''No State, judge, or 
court," declared Taney, who rendered the opinion of 
the court, "after they are judicially informed that 
the party is imprisoned under the authority of the 
United States, has any right to interfere with him, or 
to require him to be brought before him. And if the 
authority of the State, in form of judicial process or 

59 



THE AMERICAN CONSTITUTIONAL SYSTEM 

otherwise, should attempt to control the marshal or 
other authorized officer or agent of the United States, 
in any respect, in the custody of his prisoner, it would 
be his duty to resist it, and to call to his aid any force 
that might be necessary to maintain the authority of 
law against illegal interference.'' 



60 



CHAPTER IV 

SECESSION: COERCION OF STATES: RECONSTRUCTION 

In the foregoing chapters there has been set forth 
the view that in 1789 the establishment of a national, 
sovereign State, as distinguished from a League of 
independent Commonwealths, was intended, and that 
though in form, and in the belief of its creators, de- 
riving its life from a voluntary agreement between 
sovereign States, the union then effected was regarded 
as one from which its commonwealth members might 
not legally secede. But, though this was, as we be- 
lieve, the view generally held at the time the new gov- 
ernment was inaugurated, assertions of both a consti- 
tutional and an ethical right on the part of the 
States to withdraw at will were soon made. In the 
First Congress, Pierce Butler of South Carolina 
threatened secession. In 1795 plans for separation 
were begun in Kentucky and western Pennsylvania, 
but these latter were, as Alexander Johnston says, the 
product rather of frontier freedom than the result of 
a theory of state sovereignty.^ In 1795 also there ap- 
peared in the "Connecticut Courant" a series of arti- 
cles urging a separation of the northern from the 
southern States. 

iLalor's "Cyclopedia Pol. Science," Article ''Secession." 
61 



THE AMERICAN CONSTITUTIONAL SYSTEM 

In September, 1799, Jefferson prepared a draft of 
a reply which he thought should be made to the States 
that had repudiated the Virginia and Kentucky Reso- 
lutions, in which he said : ^ ' We are w^illing to sacrifice 
to this [the Union] every thing but the right of self- 
government in these important points which we have 
never yielded, in which alone we see liberty, safety, 
and happiness ; that not at all disposed to make every 
measure of error or of wrong a cause of secession, we 
are willing to look on with indulgence, and to wait 
with patience, etc." At another time he wrote: "We 
should never think of separation but for repeated and 
enormous violations." In the above expressions the 
rightfulness of secession was certainly implied and 
its possibility suggested. It is a remarkable fact also 
that, in the first two formal analyses of the federal 
Constitution by lawyers, it was held that the right of 
secession had not been abandoned by the individual 
States. The first of these analyses or commentaries 
was by St. George Tucker, an eminent judge in Vir- 
ginia and stepfather of Randolph of Roanoke, and 
was published as an appendix to the first volume of 
an edition of Blackstone's Commentaries which ap- 
peared in 1803. After developing the view that the 
Constitution is a compact between the States, he de- 
clared: "The Federal Government, then, appears to 
be the organ through which the United Republics com- 
municate with foreign nations, and with each other. 
Their submission to its operation is voluntary; its 
councils, its engagements, its authority, are theirs, 
modified and united. Its sovereignty is an emanation 
from theirs, not a flame in which they have been con- 

62 



SECESSION: COERCION: RECONSTRUCTION 

sumed, nor a vortex in which they are swallowed up. 
Each is still a perfect State, still sovereign, still in- 
dependent, and still capable, should the occasion re- 
quire, to resume the exercise of its functions, as such, 
in the most unlimited extent." 

Tucker's opinions upon this point were repeated 
in 1825 by Rawle in his "View of the Constitution." 
In that work he said: "The States may wholly with- 
draw from the Union, but while they continue they 
must retain the character of representative repub- 
lics." He went on to say, however, that this right 
of secession might only be exercised by the "people," 
that is, in constituent assembly, and not by the legis- 
lature, unless that body were expressly given that 
authorit}^ by the constitution of the State. And he 
added: "But in any manner by which a secession is 
to take place, nothing is more certain than that the act 
should be deliberate, clear, and unequivocal; and in 
such case the previous ligament with the Union would 
be legitimately destroyed." 

In 1811 Representative Quincy declared upon the 
floor of the House that it was his deliberate opinion 
that should the bill providing for the admission of 
Louisiana as a State become a law, the Union would 
be virtually dissolved, and that not only would the 
States be thus released from all moral obligations, but 
that "as it will be the right of all, so it will be the 
duty of some to prepare definitely for a separation, 
amicably if they can, violently if they must." Dur- 
ing the operation of the Embargo Act and the War 
of 1812 there were many threats of secession from 
the New England States, culminating in the assem- 

63 



THE AMERICAN CONSTITUTIONAL SYSTEM 

bling of the Hartford Convention.^ In this meeting 
the possibility of a dissolution of the Union was dis- 
cussed, and in the report that was made its moral 
rightfulness in cases of extreme oppression was as- 
serted, but it does not conclusively appear either that 
actual immediate secession was there urged, or the 
doctrine declared that secession was more than a 
revolutionary right. 

In the period from 1838 to 1845 the opposition to 
the proposed annexation of Texas led to declarations 
in New England that such an act would justify se- 
cession; and, on the other hand, in the South, the 
threat "Texas or Disunion" was frequently heard. 
From this time on, threats of secession on the part 
of the Southern States became increasingly numer- 
ous, until in 1861 they Avere finally attempted to be 
put into execution. 

From the foregoing paragraphs it will have ap- 
peared that the theory of secession, both as a con- 
stitutional and as a revolutionary right, and actual 
threats of its exercise, played a part in the consti- 
tutional history of the United States from the first 
years of its existence. This important point is to be 
noticed, however, that in no one instance did any 
department or public official of the Federal Govern- 
ment fail, in case of threatened or actual conflict be- 
tween state and federal law or authority, to assert 
the supremacy of the Federal Government. Jackson, 
himself, who did indeed refuse in one instance to en- 
force a judgment of the Supreme Court of the United 
States in which a law or laws of the State of Georgia 
had been declared void, upheld in the most emphatic 

1 Cf. von Hoist, ''Const. Hist. U. S.," I, p. 190 et seq. 

64 



SECESSION: COERCION: RECONSTRUCTION 

manner the federal authority at the time that resis- 
tance to it was threatened by South Carolina. He 
met the nullification ordinance of that State by imme- 
diately summoning General Scott and giving him 
orders to garrison strongly Fort Moultrie and Castle 
Pinckney, and have a sloop of war and revenue cut- 
ters sent to Charleston to enforce the collection of 
the duties levied by the act which South Carolina 
had declared null and void. ''Proceed at once to 
execute these views," he said to Scott. "You have 
my carte hlanche in respect to troops; the vessels 
shall be there." Calhoun he threatened to hang as 
high as Haman,— a threat which some historians have 
asserted was not without its influence upon that arch 
exponent of nullification. In Congress the obnox- 
ious tariff act was somewhat changed, but not so as 
to exclude from it those provisions which South 
Carolina had declared rendered it unconstitutional, 
and, furthermore, upon the same day that this new 
tariff law was passed, the so-called "Force Bill" was 
enacted, giving to the federal executive the amplest 
power to execute federal laws within a State, despite 
the opposition of its people. 

The Supreme Court, guided by Taney, though giv- 
ing a strict interpretation to federal powers and a 
liberal interpretation to those of the States, and 
though stating in some of its opinions the doctrine 
that the authority of the General Government was 
derived by gift from the sovereign States,^ emphati- 

1 For example : " The Constitution of the United States, with 
all the powers conferred by it on the General Government, and 
surrended by the States, was the voluntary act of the people of 
the several States, deliberately done for their own protection and 
safety against injustice from one another." Ableman v. Booth. 

5 65 



THE AMERICAN CONSTITUTIONAL SYSTEM 

cally upheld, as we have seen, the federal supremacy 
in Ableman v. Booth. That Taney was no more a 
supporter of the secession doctrine than he was of 
the right of nullification we of course know. He re- 
mained a member of the federal Supreme Court until 
his death in 1864, never questioning the constitu- 
tionality of the efforts being made by the government 
in whose service he was, to overcome the resistance 
of the seceded States. What his views were regard- 
ing the legality of secession we also know from a let- 
ter written by him to President Jackson relative to 
the Hartford Convention, in which he said: ''I am 
free to declare, had I commanded the military de- 
partment where the Hartford Convention met, if it 
had been the last act of my life, I should have pun- 
ished the three principal leaders of that party. I am 
certain that an independent court martial would have 
condemned them." Even the unfortunate position 
which he and his colleagues took in the Dred Scott 
case, is to be interpreted as born of a belief that thus 
might be settled once for all the controversy which 
was seen to be threatening the dissolution of the Union. 
Considered, then, simply from the constitutional 
standpoint, it would appear that in alleging in 1861 
a right of secession the statesmen of the southern 
States advanced a theory that the events of preceding 
years had rendered untenable, if, indeed, it had ever 
been tenable. So often and so emphatically had the 
supremacy of the United States over its members 
been demonstrated, that, whatever may have been the 
fact in 1789, it was then no longer an open consti- 
tutional question. 

66 



SECESSION: COERCION: RECONSTRUCTION 

When, however, from the purely political phase 
of the question we turn to a consideration of its ethi- 
cal aspects, the solution is not so evident. 

The moral right of an aggregate of people consti- 
tuting a part of the citizen body of a State to with- 
draw themselves, and the territory that they inhabit, 
from beneath the sovereignty of that State is one the 
existence of which is to be determined by the ultimate 
result to which such an act will lead. No body of in- 
dividuals has an abstract, that is, an absolute right, 
to an independent political existence. However, as 
the author has had occasion to say in another place : ^ 
"There is an exceedingly strong presumption not 
only that a given people best knows its own interests 
and the means of advancing them, but that, stimulated 
b}^ the consciousness of national independence, it will 
develop its latent potentialities in a manner that it 
will not, or cannot, do when subjected to an alien 
authority. But this presumption, however strong, is 
one that may be rebutted. . . . The interests of civili- 
zation are superior to those of any particular people. 
Judged from this general standpoint it may, there- 
fore, often happen that the forcible subjection of one 
people to the political rule of another is justified." 

Patriotism, when a rationally grounded, ethical 
sentiment, implies a confident belief upon the part 
of those who entertain it, that the best interests of 
the world are to be subserved by supporting the State 
to which their allegiance is given. It is the writer's 
own opinion that, at the time of the adoption of the 
Constitution, there existed such a strong belief in the 
1 Article "Government," "Encyclopedia Americana." 
67 



THE AMERICAN CONSTITUTIONAL SYSTEM 

necessity for, and beneficence of, a Union that should 
embrace all of the American States, that, had one or 
two, or possibly three of the then sovereign States 
refused to come into the Union, or, having come in, 
had attempted to withdraw, the citizens of the other 
States would have felt themselves morally justified 
in supporting the National Government in an attempt 
to coerce the recalcitrant or seceding States in be- 
coming or remaining members of the Union. Thus 
it is quite certain that, had Rhode Island persisted 
in her refusal to join with her sister States, she would 
have been coerced into doing so. If, however, early 
in its existence, the new Nation had been called upon 
to meet the secession of a whole section of her terri- 
tory, embracing a comparatively considerable number 
of her commonwealth members, it is by no means 
certain that either an attempt would have been made 
to prevent it, or, indeed, that it would then have been 
the general opinion that it would be morally right 
to prevent it.^ In 1861, however, conditions were 
quite different. During the seventy-two years since 

1 "That ever, at any period of our history since 1790, a single 
State— no matter how sovereign, even Virginia— could alone have 
made good, peaceably or otherwise, a withdrawal in face of her 
unitedly disapproving sister States, I do not believe. . . . But 
how would it have been at any given time with a combination 
of States, acting in sympathy,— a combination proportionately 
as considerable when measured with the whole as was the Con- 
federacy in 1861? I hold that here again it was merely a ques- 
tion of time, and that such a withdrawal as then took place 
would never have failed of success at any anterior period in our 
national history." Charles Francis Adams in an address entitled 
" The Constitutional Ethics of Secession," delivered at Charleston, 
S. C, December 22, 1902. 

68 



SECESSION: COERCION: RECONSTRUCTION 

1789, not only had the National Government greatly 
increased in power as compared with the individual 
States, but the sentiment of nationality had grown 
greatly in strength in the northern and northwestern 
States. In the southern States, however, it had made 
little progress. When, therefore, in 1861, with the 
withdrawal from the Union of the eleven southern 
States, it became necessary to decide once for all 
whether secession was justifiable, it was but natural 
that the two sections should not agree.^ In the north- 
ern States the people generally gave their primary 
allegiance to the Nation. They therefore held as 
morally unjustifiable any attempt to disrupt it. In 
the southern States, allegiance to the individual State 
was paramount. The people of that section, there- 
fore, were convinced of the immorality of any at- 

1 The question as to the side upon which lay the preponderance 
of moral right in the Civil War is of course complicated by the 
element of slavery. An examination of the much-disputed point 
as to the extent to which this element entered as a factor in this 
struggle will not be possible here. It may be said, however, 
that the people of the seceding States have uniformly taken the 
ground that with them it was not primarily for the perpetuation 
of slavery, but for the preservation of states' rights that they 
strove. Upon the other hand it is quite incontestable that it 
was the disputes that had been had regarding slavery, and the 
fear of possible future attacks upon that institution, that led the 
men of the South to put into execution that right of secession 
which they claimed as a matter of constitutional and moral right 
to possess ; and, furthermore, that upon the part of the people of 
the North the purpose, at the beginning of the war, of restrain- 
ing the further spread of slavery, and later, of absolutely de- 
stroying it, furnished to them an additional moral reason for 
maintaining unimpaired the Union. 

69 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tempt to compel their commonwealths, against their 
wills, to remain members of a superior National 
State. Each, therefore, felt justified in resisting 
the other's demands. Both felt that the Civil 
War was fought to maintain that sovereignty which 
they respectively believed morally entitled to their 
obedience. 

At the time that the disaffection of the Southern 
States ripened into open rebellion against the Union 
Buchanan was President. He asked the opinion of 
his Attorney-General, J. S. Black, as to his authority 
to employ armed force to compel the Southern States 
to return to their allegiance to the Union and obe- 
dience to its laws. Black advised him that, according 
to the Constitution and existing federal statutes, the 
President had the right to employ armed force only 
in a defensive way to protect property belonging to 
the General Government, or as a means for aiding 
the federal courts in obtaining the execution of their 
decrees. When there were no federal courts to issue 
judgments and federal officials to execute them, he 
maintained a use of military force would be illegal. 
''Without the exercise of those functions which be- 
long exclusively to the civil service, the laws cannot 
be executed in any event, no matter what may be 
the physical strength which the government has at 
its command," he declared. "Under such circum- 
stances, to send a military force into any State with 
orders to act against the people, would be simply 
making war upon them. The existing laws put and 
keep the Federal Government strictly upon the de- 
fensive. You may use force only to repel an assault 

70 



SECESSION: COERCION: RECONSTRUCTION 

on the public property and aid the courts in the per- 
formance of their duty." 

In his annual message of December 3, 1860, Bu- 
chanan denied the constitutional right of the States 
to withdraw from the Union. '^Such a principle," 
he declared, ''is wholly inconsistent with the history 
as well as the character of the Federal Constitution. 
. . . Secession is neither more nor less than revolution. 
It may or may not be a justifiable revolution, but still 
it is revolution." 

When, however, from the constitutional theory that 
the individual States had no constitutional right to 
secede, Buchanan turned to the question as to the 
means that he might legally employ to bring them back 
to an obedience to federal authority, he, following the 
opinion of his Attorney-General, declared that he 
was not authorized to use armed force for that pur- 
pose. As President of the United States he of 
course held himself bound "to take care that the laws 
be faithfully executed." ''But what," he asked, "if 
the performance of this duty, in whole or in part, has 
been rendered impracticable by events over which he 
could have exercised no control ? Such at the present 
moment is the case throughout the State of South 
Carolina so far as the laws of the United States to 
secure the administration of justice by means of the 
federal judiciary are concerned. All the federal offi- 
cers within its limits through whose agency alone 
these laws can be carried into execution have already 
resigned. We no longer have a district judge, a dis- 
trict attorney, or a marshal in South Carolina. In 
fact, the whole machinery of the Federal Govern- 

71 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ment necessary for the distribution of remedial jus- 
tice among the people has been demolished, and it 
would be difficult, if not impossible, to replace it." 
After going on to state that, under existing laws of 
Congress, he had the power to use the militia and 
employ the army and navy only as a posse comitatus 
to aid the courts, and after asserting that ''this duty 
cannot by possibility be performed in a State where 
no judicial authority exists to issue process, and where 
there is no marshal to execute it, and where, even if 
there were such officers, the entire population would 
constitute one solid combination to resist him," Bu- 
chanan said: "The question fairly stated is, Has the 
Constitution delegated to Congress the power to 
coerce a State into submission which is attempting 
to withdraw or has actually withdrawn from the Con- 
federacy? If answered in the affirmative, it must be 
on the principle that the power has been conferred 
upon Congress to declare and to make war upon a 
State. After much anxious reflection I have arrived 
at the conclusion that no such power has been dele- 
gated to Congress or to any other department of the 
Federal Government. It is manifest upon an in- 
spection of the Constitution that this is not among 
the specific and enumerated powers granted to Con- 
gress, and it is equally apparent that its exercise is 
not 'necessary and proper for carrying into execution' 
any of these powers. So far from this power having 
been delegated to Congress, it was expressly refused 
by the Convention which framed the Constitution. 
It appears from the proceedings of that body that on 
the 31st May, 1787, the clause 'authorizing an exer- 

72 



SECESSION: COERCION: RECONSTRUCTION 

tion of the force of the whole against a delinquent 
State' came up for consideration. Mr. Madison op- 
posed it in a brief but powerful speech, from which 
I shall extract but a single sentence. He observed: 
'The use of force against a State would look more 
like a declaration of war than an infliction of pun- 
ishment, and would probably be considered by the 
party attacked as a dissolution of all previous com- 
pacts, by which it might be bound.' Upon his 
motion the clause was unanimously postponed, and 
was never, I believe, again presented. Soon after- 
ward, on the 8th June, 1787, when incidentally advert- 
ing to the subject, he said: 'Any government for the 
United States formed on the supposed practicability 
of using force against the unconstitutional proceed- 
ings of the States would prove as visionary and fal- 
lacious as the government of Congress,' evidently 
meaning the then existing Congress of the old Confed- 
eration. Without descending to particulars, it may be 
safely asserted that the power to make war against a 
State is at variance with the whole spirit and intent 
of the Constitution. Suppose such a war should re- 
sult in the conquest of a State ; how are we to govern 
it afterward? Shall we hold it as a province and 
govern it as by despotic power 1 In the nature of 
things we could not by physical force control the 
will of the people and compel them to elect Senators 
and Representatives to Congress and to perform all 
the other duties depending upon their own volition 
and required from the free citizens of a free State 
as a constituent member of the Confederacy. . . . 
The fact is that our Union rests upon public opinion, 

73 



THE AMERICAN CONSTITUTIONAL SYSTEM 

and can never be cemented by the blood of its citi- 
zens shed in civil war. . . . Congress possesses many 
means of preserving it by conciliation, but the sword 
was not placed in its hand to preserve it by force." 

The foregoing reasoning of Buchanan was defec- 
tive in the following respects : In the first place, the 
interpretation given to the proceedings of the Consti- 
tutional Convention of 1787 and to the remarks of 
Madison was not a correct one. As a matter of fact, 
as the report of the proceedings of the Convention 
shows, the grant to the General Government of an 
express power to coerce recalcitrant States was finally 
abandoned, not because it was held, as Buchanan de- 
clared, that it would be improper and inexpedient to 
vest such a power in the Central Government of a 
federal state, but because it was demonstrated by 
Sherman, Mason, and Madison, that such a grant was 
unnecessary in that, in the first place, the federal ju- 
diciary was given full authority to declare void all 
unconstitutional acts of the States; and, in the sec- 
ond place, that, should there be a refusal of obedi- 
ence to federal laws, or to the decisions of the courts, 
the coercion that would have to be applied would be 
directed against individuals and not against the 
States in which they lived or of which they might be 
citizens. Thus Ellsworth in the convention of his 
State, speaking with reference to this point, after 
asserting that coercive power should be possessed by 
the Central Government, went on to say : ' ' The only 
question is, shall it be a coercion of law, or a coercion 
of arms? There is no other possible alternative. 
Where will those who oppose a coercion of law come 

74 



SECESSION: COERCION: RECONSTRUCTION 

[out; where will they endl A necessary consequence 
of their principles is a war of the States, one against 
the other. I am for coercion of law — a coercion 
which acts only upon delinquent individuals. The 
Constitution does not attempt to coerce sovereign 
bodies— States in their political capacity. No coer- 
cion is applicable to such parties but that of an 
armed force. If we should attempt to execute the 
laws of the Union by sending an armed force against 
a delinquent State it would involve the good and the 
bad, the innocent and guilty in the same calamity. 
But this legal coercion singles out the guilty indi- 
vidual and punishes him for breaking the laws of the 
Union." 

To repeat, then, the proceedings of the Convention 
that formed, and of the Conventions that ratified, the 
Constitution, make it abundantly evident that it was 
intended that the new government should have full 
coercive authority in the matter of compelling obe- 
dience to its laws. It was not intended that the new 
government should have, and it was not believed that 
it did have, any authority to declare a State delin- 
quent as a State, and to proceed against it as such by 
force; but it was intended that any or all of its citi- 
zens who might refuse obedience to federal law should 
be subject to such coercion as the General Government 
might see fit to apply, and be liable to such punish- 
ments as the laws of that government might impose. 
In other words, the fact was plainly seen at the 
time of the establishment of our National Government 
that in a Federal State, as distinguished from a mere 
Confederacy, by no possibility can a condition of 

75 



THE AMERICAN CONSTITUTIONAL SYSTEM 

affairs arise in which it will be necessary or proper 
for the central power to employ force against one of 
its constituent Commonwealths as a political body. 
In a Confederacy, composed as it is of sovereign 
States, united with one another by a common treaty 
bond, the constituent States may as such resist the 
operation of general laws, and in such cases the coer- 
cion to be applied will properly be directed against 
them as States, and not against their citizens as in- 
dividual violators of law. But in a sovereign Fed- 
eral State the individual Commonwealths, as having 
a political status only as members of the Union, 
have not the legal power to place themselves, as 
political bodies, in opposition to the national will. 
Their legislatures, their courts, or their executive offi- 
cials may attempt acts unwarranted by the federal 
Constitution or federal law, and they may even 
command that their citizens generally shall refuse 
obedience to some specified federal laws, or to the 
federal authorities generally, but in all such cases, 
such acts are, legally viewed, simply void, and 
all individuals obeying them subject to punishment 
as offenders against national law. The fact that their 
respective States have directed them to refuse obe- 
dience or to offer resistance to the execution of the 
federal laws can afford them no immunity from pun- 
ishment, for no one can shelter himself behind an 
unconstitutional law, such a law, being, in truth, as 
we have seen, not a law at all, but only an unsuccess- 
ful attempt at a law. 

From the foregoing, then, it must appear that Bu- 
chanan, in his annual message to Congress, was 

76 



SECESSION: COERCION: RECONSTRUCTION 

guilty of an ig^ioratio elenchi. The real problem by 
which he was confronted, was not whether or not he 
should employ the armed force of the Union against 
recalcitrant States, but whether or not he should en- 
force federal laws within such States against any re- 
sistance that individuals might offer. As a matter of 
fact, indeed, at the time that this message was pre- 
pared and transmitted to Congress, no State had 
actually seceded, and it was not until December 20, 
that the first ordinance of secession— by South Caro- 
lina—was adopted. Preparations for secession had, 
however, begun, and the Southerners had already 
taken the position that any attempt on the part of 
the National Government to strengthen its position 
in Fort Moultrie would be construed as equivalent to 
an act of coercion against South Carolina. 

For a time Buchanan negotiated with the Commis- 
sioners sent by the State of South Carolina, and even 
prepared an answer to their demands which by its 
terms and form seemed to imply that South Caro- 
lina had put itself in a position that would enable the 
President to negotiate or "treat" with her as with a 
foreign power. Attorney-General Black strongly ob- 
jected to this as practically implying that a State 
might, by its own act, place itself outside of the 
Union. He thereupon sent to the President a memo- 
randum in which he said: "I think that every word 
and sentence which implies that South Carolina is in 
an attitude which enables the President to 'treat' or 
negotiate with her, or to receive her commissioners in 
the character of diplomatic ministers or agents, 
ought to be stricken out, and an explicit declaration 

77 



THE AMERICAN CONSTITUTIONAL SYSTEM 

substituted which would reassert the principles of the 
message. . . . Above all things it is objectionable to 
intimate a willingness to negotiate with the State of 
South Carolina about the possession of a military 
post which belongs to the United States. The words 
^coercing a State by force of arms to remain in the 
Confederacy, a power which I do not believe the 
Constitution has conferred on Congress,' ought cer- 
tainly not to be retained. They are too vague and 
might have the effect (which I am sure the President 
does not intend) to mislead the Commissioners con- 
cerning his sentiments. The power to defend the 
public property, to resist an assailing force which 
unlawfully attempts to drive out the troops of the 
United States from one of our fortifications, and to 
use military and naval forces for the purpose of aid- 
ing the proper officers of the United States in the exe- 
cution of the laws— this, as far as it goes, is coercion, 
and may very well be called 'coercing a State by 
force of arms to remain in the Union. ' The President 
has always asserted his right of coercion to that ex- 
tent. He merely denies the right of Congress to 
make offensive war upon a State of the Union as such 
might be made upon a foreign government." 

Buchanan modified his answer to the Commissioners 
of South Carolina according to these suggestions, 
whereupon they returned an angry answer. Upon 
receiving this Buchanan said: 'Mt is now all over, 
and reinforcements must be sent." 

This was practically the situation at the time that 
Lincoln became President. In his inaugural message 
he assumed the correct constitutional position that 

78 



SECESSION: COERCION: RECONSTRUCTION 

the Federal Government could not wage public war 
against a State, not because of a lack of consti- 
tutional authority to maintain in every respect its 
supremacy, but because, from the very nature of the 
Union, a State, qua State, could not place itself in a 
position where coercion could be applied to it. 

After an argument tending to show the sovereign 
character of the Union, and that it was intended to 
be perpetual, he declared: "It follows from these 
views that no State upon its own mere motion can 
lawfully get out of the Union ; that resolves and ordi- 
nances to that effect are legally void, and that acts 
of violence within any State or States against the 
authority of the United States are insurrectionary 
or revolutionary, according to circumstances. I there- 
fore consider that, in view of the Constitution and 
the laws, the Union is unbroken, and to the extent 
of my ability I shall take care, as the Constitution 
itself expressly enjoins upon me, that the laws of the 
Union be faithfully executed in all the States. . , . 
In doing this there needs to be no bloodshed or vio- 
lence, and there shall be none unless it be forced upon 
the national authority. The power conferred upon 
me will be used to hold, occupy, and possess the 
property and places belonging to the Government 
and to collect the duty and imposts ; but beyond what 
may be necessary for these objects, there will be no 
invasion, no using of force against or among the peo- 
ple anywhere," 

In taking this position, Lincoln had to treat the war 
that had begun as merely an insurrection in which 
the coercion and punishments were to be applied to 

79 



THE AMERICAN CONSTITUTIONAL SYSTEM 

individuals. Thus he began his Proclamation of 
April 15, 1861, in which he called for seventy-five 
thousand of the militia of the States, by saying: 
* ' Whereas the laws of the United States have been for 
some time past and now are opposed and the execu- 
tion thereof obstructed in the States of South Caro- 
lina, Georgia, Alabama, Florida, Mississippi, Loui- 
siana, and Texas, by combinations too powerful to be 
suppressed by the ordinary course of judicial pro- 
ceedings;" and closed by commanding "the persons 
composing the combinations aforesaid to disperse and 
retire peaceably to their respective abodes within 
twenty days from this date." 

As further showing the theory as to the nature of 
the contest that was held by the National Government 
is the fact that Congress did not "declare war" 
against the South, or, when the struggle was over, 
enter into a treaty of peace with the Southern Con- 
federacy. It never once recognized that that govern- 
ment had or could have a de jure standing as a politi- 
cal power with which it might deal as with a foreign 
State. One after another, the surrender of his forces 
by each Confederate general was accepted as an act 
of war and thus the Confederacy left to collapse and 
disappear without any formal, official act to mark its 
demise. 

Though the United States Government did not, and, 
constitutionally, could not, recognize the Southern 
Confederacy as a foreign power, it was almost imme- 
diately obliged, by the magnitude of the struggle, to 
treat the Southerners as belligerents and to conduct 
the struggle as a public war and not as a mere con- 

80 



SECESSION: COERCION: RECONSTRUCTION 

test against violators of its municipal laws. Thus, 
only four days after the first call for troops, Lincoln, 
in declaring a blockade of the Southern ports, exer- 
cised an authority that, from the standpoint both of 
constitutional and of International Law was exercis- 
able only in time of war. The so-called Confiscation 
Acts, providing for the confiscation of the property 
of those who aided the rebellion were conspicuous 
instances of the exercise on the part of the Federal 
Government of powers as a belligerent which it could 
not, constitutionally, have exercised simply as a sov- 
ereign. The title itself of the Confiscation Act of 
July 17, 1862, "An act to punish treason and con- 
fiscate the property of rebels," showed the doable 
character of the claim of authority assumed by Con- 
gress. 

This status of the Confederates as Belligerents was 
later recognized by the United States Supreme Court. 
In Ford v. Surget (97 U. S., 594) that Court said: 
* ' To the Confederate government was conceded, in the 
interest of humanity, and to prevent the cruelties of 
reprisals and retaliation, such belligerent rights as 
belonged, under the law of nations, to armies of in- 
dependent governments engaged in war against each 
other. . . . The Confederate States were belligerents 
in the sense attached to that word by the law of 
nations. ' ' 

In a Proclamation of August 16, 1861, empowered 
so to do by the Act of Congress of July 13, 1861, the 
President in effect declared the war to be a territorial 
one. He declared that all the inhabitants of given 
districts, irrespective of the actual conduct of each, 
6 81 



THE AMERICAN CONSTITUTIONAL SYSTEM 

should be considered and treated as enemies to the 
Union. ''Whereas," said the President, ''the insur- 
gents in all the said States claim to act under the au- 
thority thereof, and such claim is not disclaimed or 
repudiated by the persons exercising the functions of 
government in such State or States or in the part or 
parts thereof in which such combinations exist, nor 
has such insurrection been suppressed by said States, 
now,' therefore, I . . . declare that the inhabitants 
of the said States . . . are in a state of insurrection 
against the United States." The Proclamation then 
went on to prohibit all commercial intercourse with 
the inhabitants of those districts. 

The Confederates having been recognized as pub- 
lic armed enemies, the question soon arose as to whe- 
ther Congress, while treating them as such in some 
matters, might also treat them as citizens or subjects 
as to others. In other w^ords, whether the government 
of the United States might exercise the rights and 
secure for itself the advantages flowing from both 
positions. For example, might it properly treat Con- 
federate property as contraband of war, and at the 
same time hang its owners, when captured, as guilty 
of treason against itself? 

The Federal Government, by its acts, showed almost 
immediately that it held that an affirmative answer 
might be given to this question. In his Proclamation 
of April 19, establishing the blockade of the Southern 
ports, Lincoln declared that he would hold amenable 
to the laws of the United States for the prevention 
and punishment of piracy, any person who "under 
the pretended authority of the said States or under 

82 



SECESSION: COERCION: RECONSTRUCTION 

any other pretense," should "molest a vessel of the 
United States or the persons or cargo on board of 
her." Some few captured Confederates were in fact 
tried and convicted in pursuance of this threat, but 
were not executed, Jefferson Davis, the President of 
the Confederacy, having threatened that, should they 
be hanged, a like penalty would be inflicted upon an 
equal number of captured Federals. By numerous 
other acts, the Federal Government took constant 
pains throughout the war to make it perfectly plain 
to all that it continued to regard the seceded States 
as members of the Union, and its inhabitants as its 
citizens. Thus those States were called upon to fur- 
nish their respective quotas of militia, the direct taxes 
were apportioned among them according to their 
populations as the federal Constitution required, and, 
later, their votes counted in the ratification of the 
thirteenth, fourteenth, and fifteenth amendments.^ 
Furthermore, the acts of the legislatures of the seceded 
States, passed during the years 1861 to 1865, in so far 
as they had not a treasonable aim or effect, were recog- 
nized by the federal courts as valid and were as such 
enforced. Thus in Williams v. Bruffy (96 U. S., 176) 
Justice Field declared without dissent from any of 
his colleagues: "While holding that there was no va- 
lidity in any legislation of the Confederate States 
which this Court can recognize, it is proper to observe 
that the legislation of these States stands on very dif- 
ferent grounds. ... As far as the acts of the States 

1 The difficulty which the Federal Government had in Recon- 
struction times in maintaining consistently this position will be 
later adverted to. 

83 



THE AMERICAN CONSTITUTIONAL SYSTEM 

did not impair or tend to impair the supremacy of 
the national authority, or the just rights of citizens 
under the Constitution, they are, in general, to be 
treated as valid and binding." It will be observed 
that in the above care was taken to declare that under 
no circumstances could a legal validity be ascribed by 
the Federal Government to the acts of the Central 
Government of the Confederacy. The continued ex- 
istence of the Southern States as States of the Union 
it did recognize, and, indeed, according to the theories 
upon which the war was waged, felt itself bound to 
recognize, and therefore, their acts, so far as constitu- 
tional, it had to accept as valid ; but the Confederacy 
it could not recognize as being a government with the 
power to issue commands that it could receive as laws, 
for it denied the legal competence of the individual 
States to create such a political being. 

So far as International Law is concerned it would 
seem that a sovereign State struggling to suppress an 
insurrection against itself, may assume both of these 
positions and exercise the rights flowing therefrom. 
When we come, however, to the constitutionality of 
the exercise by the Federal Government of these bel- 
ligerent rights at the same time that it was maintain- 
ing its position as sovereign, we find the legality of 
the acts of the Federal Government not so readily 
conceded. Upon the floors of Congress as well as in 
the press, the debates .were extremely bitter. The 
whole question finally came up for judicial settlement 
in the so-called Prize Cases (2 Black, 635) and the 
case of Mrs. Alexander's Cotton (2 Wall., 404). In 
these cases the constitutionality of the acts of Congress 

84 



SECESSION: COERCION: RECONSTRUCTION 

was squarely upheld. In the opinion rendered in the 
lower court, the correctness of which was affirmed by 
the Supreme Court, Judge Sprague declared: "Some 
have apprehended that if the conflict of arms is to be 
deemed war, our enemies must have, against the gov- 
ernment, all the immunities of belligerents. But this 
is to overlook the double character which these ene- 
mies sustain. They are at the same time belligerents 
and traitors, and subject to the liabilities of both. 
These rights coexist and may be exercised at pleasure. 
. . . Civil war, ex vi termini, imports that sovereign 
rights are not relinquished, but insisted on. The war 
is waged to maintain them." In affirming the de- 
cisions and accepting the reasoning of the lower 
courts in the Prize Cases the Supreme Court of the 
United States declared: ''It is a proposition never 
doubted that the belligerent party who claims to be 
sovereign may exercise both belligerent and sovereign 
rights. "1 

RECONSTRUCTION 

The Federal Government had sufficient difficulty in 
maintaining even a semblance of constitutional form 
during the prosecution of the Civil War, but when, 
at the cessation of hostilities, it was confronted by the 
problem of reconstructing the state governments of 
the people lately in rebellion and placing the whole 
Union upon a permanent peace footing, it found itself 
beset with a still severer constitutional problem,— or 
rather with a constitutional problem which, though 
1 Citing Rose v. Himely, 4 Cr., 241. 

85 



THE AMERICAN CONSTITUTIONAL SYSTEM 

simple in itself, when solved in the manner most ob- 
viously pointed out by logical consistency, led to prac- 
tical results that could not for a moment be accepted. 
Shortly stated, the difficulty was this : If, as the Fed- 
eral Government had all along claimed, the ordinances 
of secession enacted by the Southern States had been 
mere nullities, and therefore, those States had, from 
the strictly legal standpoint, never been out of the 
Union, then, hostilities having ceased, and the citi- 
zens and authorities of those States having declared 
their loyalty to the Union and readiness again to fulfil 
their constitutional obligations, there was, it would 
seem, no constitutional objection that could be in- 
terposed to prevent them from doing so, and thus at 
once beginning again the exercise of those political 
and other privileges that the federal Constitution 
grants equally to all the commonwealth members of 
the Union. The chief among these rights were of 
course the right to send representatives to Congress, 
to participate in the election of the President, to 
have federal laws and federal administration applied 
within their respective limits in a manner no differ- 
ent from that in which it is applied in all the other 
States, and, finally, to be left at liberty to exercise, 
free from federal interference, all those rights that 
were reserved to them by the federal Constitution. 

The foregoing was exactly the position assumed 
by the lately rebellious States. If, their leaders de- 
clared, the war was one against individuals, and not 
against States, with what constitutional right could 
the Federal Government after the war impose penal- 
ties not upon individuals but upon the States 1 

86 



SECESSION: COERCION: RECONSTRUCTION 

The force of this argument was clearly seen, but 
to have acted upon it would of course have been to 
render the terrible struggle that had been waged 
unsatisfactory in its results. The actual disruption of 
the Union would have been prevented, but no guaran- 
tees would have been obtained that at another and 
more favorable time the attempt at separation would 
not be repeated. Furthermore, and equally impor- 
tant, such a course would have left both the legal 
white minorities and the helpless blacks wholly at 
the mercy of the populations of those States, which, 
though conquered, were not convinced either of the 
unconstitutionality or of the impolicy of the action 
they had attempted ; and, therefore, as simply yield- 
ing to superior force, could not be expected to en- 
tertain a lively sense of affection for, or obligation 
to, those who had either not assisted in or had actu- 
ally striven to prevent, the realization of their de- 
sires, and, as they still believed, their rights. 

To avoid the Southern, Democratic, or ''Restora- 
tion" theory, as it was called, four views as to the 
constitutional status of the conquered States were 
advanced, according to three of which, if accepted, 
the Federal Government would be given a compara- 
tively free hand in imposing such requirements as it 
might see fit as conditions precedent to the readmis- 
sion of the lately rebellious States to the privileges of 
full membership in the Union. To these four theories 
were given the names, "Presidential," "State Sui- 
cide," "Conquered Province," and "Forfeited 
Rights" theories respectively. 

According to the "Presidential" theory, that is to 
87 



THE AMERICAN CONSTITUTIONAL SYSTEM 

say, that theory which was first attempted to be put 
into execution by Lincoln and later accepted, in prin- 
ciple at least, by Johnson, it was held that the Union 
was legally indestructible, and that, therefore, the 
Southern States had never been out of the Union. 
But though not ceasing to be States, it was held that 
they no longer had constitutional governments. Ac- 
cording to this theory, then, so long as this remained 
the case, the States had no constitutional rights, sim- 
ply for the reason that they had no organs through 
which they might be claimed and exercised. The first 
aim of these States should therefore be, it was argued, 
to reestablish governments, republican in form and 
loyal to the Union. In the performance of this task 
the General Government, it was declared, might con- 
stitutionally lend its aid, but might not impose a eon- 
trolling will. 

According to the ''State Suicide" theory of Sum- 
ner, the ordinances of secession, though powerless to 
take the States out of the Union, had had sufficient 
vitality to cause the States adopting them to commit 
political felo de se. Thus, such States, being reduced 
to a non-state or territorial status, became subjected to 
that complete jurisdiction which the Constitution gives 
Congress over the territories. Therefore, Sumner 
held, that body might impose any conditions that it 
might see fit before again erecting them into States.^ 

1 Hurd, in his " Theory of Our National Existence," and Brown- 
son, in his "American Republic," by developing a peculiar theory 
as to the location of sovereignty in the United States, were able 
to ascribe to the ordinances of secession the same effect as that 
given to them by Sumner. 

88 



SECESSION: COERCION: RECONSTRUCTION 

The ''Conquered Province" theory, the most ex- 
treme doctrine of all, was fathered by Thaddeus 
Stevens. According to his view, the States of the 
South were to be treated as conquered provinces, and 
as such, to be subjected to whatever penalties Con- 
gress and the President, acting under the ample pow- 
ers of war, might see fit to impose. 

Last of all was the ''Forfeited Rights" or "Con- 
gressional" theory of Reconstruction. According to 
this view, the States lately in rebellion had remained 
States and continued in the Union, but, by their re- 
bellion, had forfeited those constitutional rights to 
which otherwise they would be entitled by the federal 
Constitution. Therefore, it was declared. Congress 
might judge when, and under what conditions, the 
rights thus forfeited might be returned. 

For the purpose of this constitutional study it will 
not be necessary to trace the history of the manner 
in which the "reconstruction" of the Southern 
States was finally effected, nor to speak of the consti- 
tutional contest waged between the federal executive 
and federal legislature. As a summary, however, we 
may say that "the war was begun under the theory 
of 'restoration,' and that this theory was persistently 
maintained by the democrats to the end; that the 
presidential theory was developed by Lincoln in 1863, 
and carried out by Johnson in 1865, but fell back 
under the hands of the latter into a modification of 
the restoration theory; that the Sumner and Stevens 
theories received no formal ratification from any 
quarter; but that Congress . . . was pressed by the 
forc€ of contest with the presidential theory into a 

89 



THE AMERICAN CONSTITUTIONAL SYSTEM 

plan of its own in 1867, consisting of the Davis-Wage 
plan, increased by the suffrage features of the Sum- 
ner theory, and the whole based on a modification of 
the Stevens theory of the suspension of the Consti- 
tution." ^ 

As regards the abstract constitutionality of the five 
reconstruction theories mentioned, there can be no 
question but that the Southern Democratic or Resto- 
ration theory was the one most nearly in consonance 
with the general constitutional theory upon which the 
North had declared and waged the war.^ 

The constitutional objections to the presidential 
theory, aside from the question as to whether it should 
be applied by the executive or by the legislature, were 
not serious. It was not unreasonable to maintain 
that the lately rebellious States were without govern- 
ments qualified to exercise the constitutional rights 
that were claimed, and, this being so, it was well 
within the province of the Federal Government to 
lend its advice and even armed forces to the loyal 
minorities in those States for the purpose of aiding 

1 Quoted from the article " Reconstruction " in Lalor's " Cyclo- 
pedia of Political Science," by the late Alexander Johnston. 

2 At the special session of Congress in 1861, a Joint Resolution 
passed by very large majorities in both Houses defined the object 
of the war as follows : " That this war is not prosecuted upon 
our part in any spirit of oppression, nor for any purpose of con- 
quest or subjugation, nor for the purpose of overthrowing or 
interfering with the rights or established institutions of those 
States, but to defend and maintain the supremacy of the Consti- 
tution and all laws made in pursuance thereof, and to preserve 
the Union with all the dignity, equality, and rights of the several 
States unimpaired ; that as soon as these objects are accom- 
plished, the war ought to cease." 

90 



SECESSION: COERCION: RECONSTRUCTION 

them to establish governments that might fairly be 
termed loyal to the Union. Therefore it would seem 
that no constitutional objection lay to the proclama- 
tion of President Lincoln in which he said that when 
one tenth of the loyal voters should establish a state 
government that was republican in form, such gov- 
ernment would be recognized by him as the true 
government of that State, and the State thereupon 
admitted to all the rights guaranteed it by the 
federal Constitution. As to the right, however, of 
the President himself to determine, as he did in his 
proclamation, when and under what circumstances 
citizens of the States in question should be qualified 
to hold office, there would seem to be constitutional 
objection. Also it might very well be asked whether 
any government established by simply one tenth of 
the adult males of a community could be said to be 
republican in character. To this point we shall re- 
turn later on when we come to consider the meaning 
of that clause of the Constitution which provides 
that the United States shall guarantee to each State 
a government republican in form. 

The ''State Suicide" theory of Sumner as well as 
the "Conquered Province" theory of Stevens are to 
be regarded as having been wholly illogical and in- 
consistent with that view of the nature of the Union 
upon which the war had been fought; the former be- 
cause it could not be granted that a State was able, by 
any act of its own, to change its constitutional and 
political status m the Union any more than it could 
take itself out of the Union; the latter because the 
principles applicable to conquered territory have ref- 

91 



THE AMERICAN CONSTITUTIONAL SYSTEM 

erence only to foreign territory subdued by force of 
arms. Manifestly a State cannot make a conquest of 
its own territory ; and, if the States could not secede, 
they could not become foreign. 

The ' ' Forfeited Rights ' ' or " Congressional ' ' theory 
of Reconstruction was, in a way, a compromise be- 
tween the Presidential theory on the one hand and 
the theories of Sumner and Stevens on the other, but 
in so far as it departed from the former and instead 
of simply aiding the inhabitants of the Southern 
States themselves to establish loyal, republican gov- 
ernments, imposed conditions that were not, and could 
not constitutionally be, required of the other States 
in the Union, it was clearly inconsistent with the gen- 
eral northern theory as to the character of the Union. 
Aside, moreover, from the invalidity of the argument 
that the States, as States, might "forfeit" any of 
their constitutional rights any more than that they 
could commit suicide. Congress was led, in the appli- 
cation of the theory, into the grossest of inconsis- 
tencies, recognizing the Southern Commonwealths as 
effective members of the Union for some purposes— 
as for instance, for the ratification of constitutional 
amendments— while denying it as to others; and de- 
claring governments forced by the bayonet upon un- 
willing peoples as republican in form. Upon a nar- 
ration of these facts, however, we do not need to 
enter. 

Repeated efforts were made to get the Supreme 
Court of the United States to pass upon the consti- 
tutionality of the various acts passed by Congress for 
the reconstruction of the Southern States, but with- 

92 



SECESSION: COERCION: RECONSTRUCTION 

out complete success. In a general way the court ac- 
cepted as valid the Congressional theory, but never 
passed definitely upon the constitutionality of the acts 
of Congress that were passed for putting that theory 
into practice. In all the cases that were brought be- 
fore it the court evaded a definite decision, either by 
declaring the questions involved political in nature, 
and therefore as not subject to its jurisdiction, or by 
finding a way to decide them upon some ground that 
made it unnecessary to consider the validity of the 
acts that were impugned. Upon several occasions, 
however, the Court did not hesitate to repudiate in 
the most emphatic manner the doctrine that the 
States had been outside of the Union, or that they 
could possibly, by any constitutional act of theirs, ever 
become so. In the famous case of Texas v. White (7 
"Wall., 700) both the right, or rather the power, of a 
State to take itself out of the Union, and the status 
of the States during the reconstruction period were 
brought squarely before the Court. Soon after the 
war, but before its government had been recognized 
by Congress as satisfactorily reconstructed, the State 
of Texas brought suit in the Supreme Court of the 
United States under that clause of the federal Consti- 
tution which gives to the federal Supreme Court juris- 
diction of suits prosecuted by a State against citi- 
zens of another State. But unless Texas were at that 
time a State of the Union she, of course, had no stand- 
ing as a suitor before the federal court. That Court 
had thus to pass in limine upon the questions of se- 
cession and reconstruction. Upon the former of these 
points the Court declared as follows: "The Union of 

93 



THE AMERICAN CONSTITUTIONAL SYSTEM 

the States never was a purely artificial and arbitrary 
relation. It began among the colonies, and grew out 
of common origin, mutual sympathies, kindred prin- 
ciples, similar interests, and geographical relations. 
It was confirmed and strengthened by the necessities 
of war, and received definite form and character and 
sanction from the Articles of Confederation. By 
these the Union was solemnly declared to 'be per- 
petual.' And when these Articles were found to be 
inadequate to the exigencies of the country, the Con- 
stitution was ordained 'to form a more perfect 
Union. ' It is difficult to convey the idea of indissolu- 
ble unity more clearly than by these words. What can 
be more indissoluble, if a perpetual union, made more 
perfect, is not? But the perpetuity and indissolu- 
bility of the Union by no means implies the loss of 
distinct and individual existence or of the right of 
self-government by the States. Under the Articles 
of Confederation, each State retained its sovereignty, 
freedom, and independence, and every power, juris- 
diction and right not expressly delegated to the United 
States. Under the Constitution, though the powers of 
the States were much restricted, still, all powers not 
delegated to the United States, nor prohibited to the 
States, are reserved to the States respectively, or to 
the people. And we have already had occasion to re- 
mark at this term, that 'the people of each State com- 
pose a State, having its own government, and en- 
dowed with all the functions essential to separate 
and independent existence,' and that 'without the 
States in Union,' there would be no such political 
body as the United States (Lane County v. Oregon, 

94 



SECESSION: COERCION: RECONSTRUCTION 

7 Wall., 76). Not only, therefore, can there be no 
loss of separate and independent autonomy to the 
States through their Union under the Constitution, 
but it may be not unreasonably said that the preser- 
vation of the States and the maintenance of their 
governments are as much within the design and care 
of the Constitution as the preservation of the Union 
and the maintenance of the National Government. 
The Constitution, in all its provisions, looks to an 
indestructible Union composed of indestructible 
States. When, therefore, Texas became one of the 
United States, she entered into an indissoluble rela- 
tion. . . . The act which consummated her admis- 
sion into the Union was something more than a com- 
pact; it was the incorporation of a new member into 
the political body. . . . The union between Texas 
and the other States was as complete, as perpetual 
and as indissoluble as the union between the original 
States. There was no place for reconsideration, or 
revocation, except through revolution, or through the 
consent of the States. 

"Considered, therefore, as transactions under the 
Constitution, the ordinance of secession, adopted by 
the convention and ratified by a majority of the citi- 
zens of Texas, and all the acts of her legislature in- 
tended to give effect to that ordinance, were abso- 
lutely null. They were utterly without operation in 
law. The obligations of the State, as a member of the 
Union, and of every citizen of the State, as a citizen of 
the United States, remained perfect and unimpaired. 
It certainly follows that the State did not cease to be 
a State, nor her citizens to be citizens of the Union." 

95 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Having thus determined that the State of Texas 
was, and always had been, a State in the Union, since 
the time of her admission thereinto in 1845, the 
Court next addressed itself to the question whether 
at the time the suit was brought it was, notwithstand- 
ing its "unreconstructed" condition, in a position to 
claim the privileges secured to States by the federal 
Constitution, and among them, in particular to the 
right to bring an original suit in the Supreme Court 
of the United States. As to this the Court said : ' ' In 
order to the exercise, by a State, of the right to sue 
in this Court, there needs to be a state government, 
competent to represent the State in its relations with 
the National Government, so far at least as the insti- 
tution and prosecution of a suit is concerned. And it 
is by no means a logical conclusion, from the premises 
which we have endeavored to establish, that the gov- 
ernmental relations of Texas to the Union remained 
unaltered. ... No one has been bold enough to con- 
tend that, while Texas was controlled by a govern- 
ment hostile to the United States, and, in affiliation 
with a hostile confederation, waging war upon the 
United States, Senators chosen by her legislature, or 
Representatives elected by her citizens, were entitled 
to seats in Congress; or that any suit, instituted in 
her name, could be entertained in this Court. All 
admit that, during this condition of civil war, the 
rights of the State as a member, and of her people 
as citizens of the Union, were suspended. . . . These 
new relations imposed new duties upon the United 
States. The first was that of suppressing the rebel- 
lion. The next was that of reestablishing the broken 

96 



SECESSION: COERCION: RECONSTRUCTION 

relations of the States with the Union. . . . The au- 
thority for the performance of the first had been 
found in the power to suppress insurrection and carry 
on war; for the performance of the second, authority 
was derived from the obligation of the United States 
to guarantee to every State in the Union a republican 
form of government. . . . When the war closed there 
was no government in the State except that which had 
been organized for the purpose of waging war against 
the United States. That government immediately dis- 
appeared. . . . There being, then, no government in 
Texas in constitutional relations with the Union, it 
became the duty of the United States to provide for 
the restoration of such a government. . . . Whether 
the action then taken was, in all respects, warranted 
by the Constitution, it is not now necessary to de- 
termine." The acts of the President, the Court then 
went on to say, were done in pursuance of his pow- 
ers as Commander-in-chief of the army, and were 
but provisional and were so regarded by Congress. 
As regards the acts of Congress the Court said that 
nothing in the case required it to pronounce judg- 
ment upon the constitutionality of any particular 
provision of them, the fact that it appeared that the 
government that brought the suit had been recognized 
by Congress as the actually existing government of the 
State, being sufficient to give it jurisdiction.^ 

1 Justice Grier rendered a dissenting opinion in which he main- 
tained that whatever may have been the theory, Texas had, as 
a fact, been outside of the Union, and had been so decided to be 
by Congress. " It is a question of fact, I repeat, and of fact 
only," he declared. "Politically, Texas is not a State in this 

7 97 



THE AMERICAN CONSTITUTIONAL SYSTEM 

In Knox v. Lee (12 WalL, 557) the Court said, 
speaking through the mouth of Justice Bradley : ' ' The 
doctrine so long contended for, that the federal Union 
was a mere compact of States, and that the States, if 
they chose, might annul and disregard the acts of the 
national legislature, or might secede from the Union 
at their pleasure, and that the General Government 
had no power to coerce them into submission to the 
Constitution, should be regarded as definitely and for- 
ever overthrown. This has finally been effected by 
the national power, as it had often been before by 
overwhelming argument. . . . The United States is 
not only a government, but it is a National Govern- 
ment, and the only government in this country that 
has the character of nationality." 

In Keith v. Clark (97 U. S., 454), decided in 1878, 
the Supreme Court again emphatically asserted the 
legal conclusion that the seceding States had never 
been out of the Union. Referring to Tennessee, the 
Court declared: "This political body has not only 
been all this time a State and the same State, but it 
has always been one of the United States,— a State of 
the Union. Under the Constitution by virtue of which 
Tennessee was born into the family of States, she had 
no lawful power to depart from that Union. . . . 
She never escaped the obligations of that Constitu- 
tion, though for a while she may have evaded their 
enforcement. ' ' 

Before either of the cases of Texas v. White, and 

Union. Whether rightfully out of it or not is a question not be- 
fore the Court." With Justice Grier Justices Swayne and Miller 
concurred. 

98 



SECESSION: COERCION: RECONSTRUCTION 

Keith V. Clark was decided, an attempt was made to 
have the reconstruction acts held unconstitutional by 
the Supreme Court, by asking for an injunction re- 
straining the President from enforcing them. The 
federal court, however, decided that it could not grant 
a restraining order against the Chief Executive 
under the circumstances, the matters involved being 
political and not judicial in character (Mississippi v. 
Johnson, 4 Wall., 475). 

LofC. 



99 



CHAPTER V 

THE SUPREMACY OF FEDERAL LAW 

The foregoing pages have sufficiently shown that the 
Federal Government has no power to coerce a State, 
as a State. They have also shown that the National 
State, because of its absolute sovereignty over all the 
land and people of the United States, and because of 
its paramountcy over all its political subdivisions, has 
full power to protect any right and to enforce any law 
of its own at any time, and at any place within its 
territorial limits, any resistance of private individuals, 
or state officials, acting with or without the author- 
ity of state law to the contrary notwithstanding. 
Having the authority, the United States has the right 
to declare illegal, to fix and enforce by its own tri- 
bunals a penalty upon any resistance opposed to its 
agents when acting within their official spheres, and, 
if necessary, to prevent by its own armed forces such 
interference when threatened or overcome it when 
actually attempted. 

The possession by the National Government of this 
general right has been uniformly asserted by the 
Supreme Court, throughout the whole period of its 
existence, whenever such an assertion has been neces- 
sary. Thus in 1824, in the case of Osborn v. Bank of 
U. S. (9 Wh., 738)— a case to which we have already 

100 



THE SUPREMACY OF FEDERAL LAW 

referred in another connection— Chief Justice Mar- 
shall met the argument that the suit, being against 
one of its officials and based upon acts committed by 
him in his official capacity, was in fact a suit against 
the State of Ohio, one, therefore, which, under the 
Eleventh Amendment, the Court was without au- 
thority to try, by declaring: "A denial of jurisdic- 
tion forbids all inquiry into the nature of the case. 
It applies to cases perfectly clear in themselves; to 
cases where the [National] Government is in the ex- 
ercise of its best established and most essential pow- 
ers, as well as to those which may be deemed question- 
able. It asserts that the agents of a State, alleging the 
authority of a law, void in itself, because repugnant 
to the Constitution, may arrest the execution of any 
law in the United States. It maintains that if a 
State shall impose a fine or penalty on any person em- 
ployed in the execution of any law of the United 
States, it may levy that fine or penalty by a minis- 
terial officer, without the sanction even of its own 
courts; and that the individual, though he perceives 
the approaching danger, can obtain no protection 
from the judicial department of the [National] Gov- 
ernment. . . . The question, then, is whether the 
Constitution of the United States has provided a tri- 
bunal which can peacefully and rightfully protect 
those who are employed in carrying into execution 
the laws of the Union from the attempts of a partic- 
ular State to resist the execution of those laws." 
That Marshall answered this question in the affirma- 
tive need not be said. 

Again, after the Civil War, the Court said, when 
101 



THE AMERICAN CONSTITUTIONAL SYSTEM 

confronted by the proposition that because the United 
States was without any general criminal law jurisdic- 
tion it might not punish criminally individuals who 
had violated certain of its laws relating to congres- 
sional elections: "It is argued that the preservation 
of peace and good order in society is not within the 
powers confided to the government of the United 
States, but belongs exclusively to the States. Here 
again we are met with the theory that the govern- 
ment of the United States does not rest upon the soil 
and territory of the country. AVe think that this 
theory is founded on an entire misconception of the 
nature and powers of that government. We hold it 
to be an incontrovertible principle that the govern- 
ment of the United States may, by means of physical 
force, exercised through its official agents, execute 
on every foot of American soil the powers and func- 
tions that belong to it. This necessarily involves 
the power to command obedience to its laws, and 
hence the power to keep the peace to that extent " 
{Ex parte Siebold, 100 U. S., 371). 

Finally in the Debs case {In re Debs, 158 U. S., 
564), a ease growing out of the great railway strike of 
1894, the plenitude of the federal power was emphati- 
cally stated. Speaking of the right of the National 
Government to protect, by armed force if necessary, 
interstate commerce and the transportation of the 
mails, the Court said : ' ' If all the inhabitants of a sin- 
gle State or even a great body of them should combine 
to obstruct interstate commerce or the transportation 
of the mails, prosecution of such offenses had in such 
a community would be doomed in advance to failure. 

102 



THE SUPREMACY OF FEDERAL LAW 

And if the certainty of such failure was known and 
the National Government had no other way to enforce 
the freedom of interstate commerce and the transpor- 
tation of the mails than by prosecution and punish- 
ment for interference therewith, the whole interests 
of the Nation in these respects would be at the abso- 
lute mercy of a portion of the inhabitants of a single 
State. But there is no such impotency in the National 
Government. The entire strength of the Nation may 
be used to enforce in any part of the land the full 
and free exercise of all national powers and the se- 
curity of all rights intrusted by the Constitution to its 
care. The strong arm of the National Government 
may be put forth to brush away all obstructions to 
the freedom of interstate commerce or the transporta- 
tions of the mails. If the emergency arises, the army 
of the Nation and all its militia are at the service of 
the Nation to compel obedience to its laws." 

A corollary, that necessarily follows from the gen- 
eral principle we have been discussing, is that no State 
can declare and punish as criminal, acts authorized by 
federal law. This has not been directly denied by the 
States, since the Civil War at least, but it has been 
most strenuously asserted by them that when an 
offense has been committed against one of their laws, 
and the one committing it has been apprehended and 
brought to trial before their courts, he is not entitled 
to have his case removed at once to the federal courts 
simply by setting up as a defense that his act was 
done in pursuance of an authority delegated him by 
the General Government. The right to set up this 
defense has not been denied by the States, nor have 

103 



THE AMERICAN CONSTITUTIONAL SYSTEM 

they claimed that, should the decision of their courts 
be adverse to him upon this point, he may take an 
appeal from their highest tribunals to the Supreme 
Court of the United States. But they have asserted 
that when an act has been committed which is crim- 
inal by their laws, it is, primarily, an offense against 
their peace, and as such cognizable only in their own 
courts, and therefore that though, as has been just 
said, a right of appeal from their highest courts to 
the United States Supreme Court upon the point of 
federal authority must be allowed, the trial of the 
offense may not as a matter of right be removed by 
the accused one from the state court in which it is 
begun to one of the lower federal courts. 

A leading case upon this point is that of Tennessee 
V. Davis (100 U. S., 257), decided in 1879. The fa- 
mous Force Act of 1833, passed at the time of South 
Carolina's attempted nullification of the United 
States tariff law, provided that "when any civil suit 
or criminal prosecution is commenced in any court of 
a State against any officer appointed under, or act- 
ing by authority of, any revenue law of the United 
States, now or hereafter enacted, or against any per- 
son acting by or under authority of any such officer, 
or on account of any act done under color of his 
office," the case, at the defendant's instance, might 
be at once removed from the state to the federal 
courts for trial. Davis, a federal revenue officer, 
killed a man, was arrested therefor, and, when 
brought to trial, applied for removal to a federal court 
under this act. The State of Tennessee, however, de- 
nied the constitutionality of this grant of right. Jus- 

104 



THE SUPREMACY OF FEDERAL LAW 

tice Strong, in rendering the opinion of the United 
States Supreme Court upon this point, prefaced his 
discussion of this point by saying : " A more important 
question can hardly be imagined. Upon its answer 
may depend the possibility of the General Govern- 
ment's preserving its own existence. As was said in 
Martin v. Hunter's Lessee (1 Wh., 363), 'the General 
Government must cease to exist whenever it loses the 
power of protecting itself in the exercise of its con- 
stitutional powers.' It can act only through its offi- 
cers and agents, and they must act within the States. 
If, when thus acting, and within the scope of their 
authority, those officers can be arrested and brought 
to trial in a state court, for an alleged offense against 
the law of the State, yet warranted by the federal 
authority they possess, and if the General Govern- 
ment is powerless to interfere at once for their protec- 
tion—if their protection must be left to the action of 
the state courts— the operations of the General Gov- 
ernment may at any time be arrested at the will of 
one of its members. The legislature of a State may 
be unfriendly. It may affix penalties to acts done 
under the immediate direction of the National Gov- 
ernment, and in obedience to its laws. It may deny 
the authority conferred by those laws. The state 
court may administer not only the laws of the State, 
but equally federal law, in such a manner as to para- 
lyze the operations of the government. And even 
if, after trial and final judgment in the state court, 
the case can be brought into the United States court 
for review, the officer is withdrawn from the discharge 
of his duty during the pendency of the prosecution, 

105 



THE AMERICAN CONSTITUTIONAL SYSTEM 

and the exercise of acknowledged federal authority 
arrested. We do not think such an element of weak- 
ness is to be found in the Constitution." 

In this case Justices Clifford and Field dissented, 
their dissent being based upon the argument that 
though Congress might, beyond all doubt, pass such 
laws as it should deem necessary for the protection of 
its agents, and might for that purpose define the acts 
that should be considered crimes, and give to the in- 
ferior federal courts jurisdiction to try those charged 
with committing them, yet, until there has been such 
specific federal legislation, the United States circuit 
and district courts could not constitutionally take or 
be given jurisdiction, for the reason that no federal 
statute has been violated. *' Unquestionable jurisdic- 
tion to try and punish offenders against the authority 
of the United States," they declared, "is conferred 
upon the circuit and district courts; but the acts of 
Congress give those courts no jurisdiction whatever of 
offenses committed against the authority of a State. 
Criminal homicide, committed in a State, is an offense 
against the authority of the State. ' ' 

The majority doctrine in the Davis case has, how- 
ever, never been overruled. The federal authority 
justified by it has indeed, in later cases, been exercised 
in ways still more radical when looked at from the 
standpoint of the reserved rights of the States. In 
the Neagle case {In re Neagle, 135 U. S., 1) it was 
held that, without express statutory authorization, 
the general authority of the President to see that the 
laws of the Union are faithfully executed empowers 
him to appoint a deputy marshal to protect a federal 

106 



THE SUPREMACY OF FEDERAL LAW 

judge whose life is threatened; and that upon such 
deputy being arrested and brought to trial in a state 
court upon the charge of murder for a homicide com- 
mitted while acting within the line of the duty thus 
assigned him, he is entitled to have his case removed 
to the federal courts. In the still more recent case of 
In re Waite (81 Federal Reporter, 359), a federal 
pension agent, convicted in a state court of fraud, and 
the conviction affirmed by the highest court of the 
State, was released by a habeas corpus by a federal 
district judge. 

In Tinsley v. Anderson (171 U. S., 101), decided 
in 1898, however, the Supreme Court of the United 
States, though reaffirming the doctrine previously laid 
down that though the federal courts have power, by 
writ of habeas corpus, to inquire into the cause of 
the restraint of the liberty of any person by a State 
when the justification of federal authorization is set 
up for the act complained of, goes on to say that the 
federal courts should not, except in cases of peculiar 
urgency, exercise that power, but should leave such 
persons to pursue their remedy by writ of error from 
the federal Supreme Court after the adjudication of 
their cases in the State's highest courts. 

The preceding paragraphs have been devoted to an 
exposition of the principles in accordance with which 
the United States government has demonstrated its 
constitutional competence to meet every form of 
resistance to its authority whether offered by an indi- 
vidual or individuals, and whether supported or un- 
supported by state authority. In one single par- 
ticular, however, it would seem that the federal courts 

107 



THE AMERICAN CONSTITUTIONAL SYSTEM 

are at present without that legal power which the 
position of the United States before the world as a 
sovereign, national State demands. This single de- 
ficiency consists in its inability either itself to furnish, 
or to compel the States to furnish, legal redress to 
resident aliens for injuries to life or property suffered 
by them at the hands of American citizens. The com- 
mission of such acts, though giving rise to valid 
complaint on the part of the nations whose subjects 
are injured, are, according to existing American law, 
offenses against the laws of the individual States 
within whose borders they occur. As such they are 
not punishable in the courts of the United States, and 
thus in a number of instances the National govern- 
ment has felt obliged to confess to foreign nations 
that it is without the legal authority to furnish that 
legal redress which they have demanded.^ 

It would seem, however, that this incompetency on 
the part of the Federal Government is statutory 
rather than constitutional. That is to say, there 
would seem to be no valid constitutional objection to 
an act of Congress giving to the federal courts cog- 
nizance of all offenses for which the United States 
may, according to the Law of Nations, be held respon- 
sible to foreign powers. In fact, the passage of such 
a law has been more than once suggested to Congress 

1 As a matter of fact the United States has never admitted it 
to be a principle of international law that it may be held respon- 
sible to foreign powers in these cases. The equity of their de- 
mands it has, however, several times recognized by appropriat- 
ing pecuniary indemnities to the families of those killed, as, for 
example, in the Spanish riots case in 1851 and in the Italian 
lynching case at New Orleans in 1891. 

108 



THE SUPREMACY OF FEDERAL LAW 

by the President. A decision of the Supreme Court 
which by analogy would probably sustain such legis- 
lation is that rendered in United States v. Arjona 
(120 U. S., 479). Arjona, the defendant, was indicted 
under an act of Congress of 1884 providing for the 
punishment of persons counterfeiting the securities 
of foreign governments. Upon the constitutionality 
of this act being questioned upon the ground that, 
though the United States had the implied right to 
declare criminal the counterfeiting of its owti bonds 
and notes, it had not the power thus to protect those of 
other powers, the Supreme Court, in its opinion, said : 
' ' The National Government is . . . made responsible to 
foreign nations for all violations by the United 
States of their international obligations, and be- 
cause of this Congress is expressly authorized 'to de- 
fine and punish . . . offenses against the law of 
nations.' . . . Consequently a law which is neces- 
sary and proper to afford this protection is one that 
Congress may enact because it is one needed to carry 
into execution a power conferred by the Constitution 
on the government of the United States exclusively. 
There is no authority in the United States to require 
the passage and enforcement of such a law by the 
States. Therefore, the United States must have the 
power to pass it and enforce it themselves, or be 
unable to perform a duty which they may owe to 
another Nation and which the law of nations has im- 
posed on them as part of their international obliga- 
tions. This, however, does not prevent a State from 
providing for the punishment of the same thing, for 
here, as in the case of counterfeiting the coin of the 

109 



THE AMERICAN CONSTITUTIONAL SYSTEM 

United States, the act may be an offense against the 
authority of a State, as well as that of the United 
States. "1 

1 Cf. on this whole subject the essay by J. I. Chamberlain, 
" The Position of the Federal Government of the United States 
in Regard to Crimes Committed against the Subjects of a Foreign 
Nation Within the States ; " also Reports of American Bar As- 
sociation for 1891, 1892, 1893; Congressional Record, 52d Con- 
gress, 1st Session, 1892 ; Annual Message of President, Decem- 
ber, 1901. 



110 



CHAPTER VI 

FEDERAL CONTROL OP STATE GOVERNMENTS 

In what has gone before, the sovereignty of the United 
States as opposed to and inconsistent with the con- 
tinued sovereignty of its individual commonwealth 
members has been sufficiently declared. Whatever 
doubt there may have been as to this before the Civil 
War, the result of that gigantic struggle left no room 
for subsequent disagreement, and the unequivocal 
assertions of the federal courts simply registered con- 
clusions that no one thereafter could rationally ques- 
tion. Starting, then, from this fundamental fact 
that, looking at the matter from a purely legal stand- 
point, the individual Commonwealths constitute 
simply governmental or administrative districts of 
the United States, we shall now proceed to consider 
the degree of autonomy secured them by the fed- 
eral Constitution. This subject we may conveniently 
divide into two parts. First, we may examine the de- 
gree of control that the Federal Government may 
constitutionally exercise over the form of govern- 
ments that the several States may establish for them- 
selves ; and, secondly, the extent to which the General 
Government may supervise or control the exercise by 
the States of those powers that are reserved to them. 

Ill 



THE AMERICAN CONSTITUTIONAL SYSTEM 

First, then, as to the control that may be constitution- 
ally exercised by the United States over the forms 
of governments of its constituent units. 

Speaking generally it may be said that, providing 
its government be republican in form, each State of 
the Union may establish such governmental organs 
as it sees fit, and apportion among them its executive, 
legislative, and judicial powers according to its own 
judgment as to what is expedient and proper. 

The federal Constitution provides that ' ' The United 
States shall guarantee to every State in this Union 
a republican form of government, and shall protect 
each of them against invasion; and on application of 
the legislatures, or of the executive (when the legisla- 
ture cannot be convened) against domestic violence." 
(Art. IV, sec. 4.) 

In form, the first clause of this section would ap- 
pear to be for the benefit of the States and to impose 
a duty upon the Federal Government, and such un- 
doubtedly would be its effect should a foreign power 
attempt to impose a government of any sort what- 
ever upon the people of one of the States against their 
will; or should a domestic revolution result in the 
establishment in power of a government not sanc- 
tioned by law or not freely agreed to by the electorate. 
In fact, however, as we have already seen, and as will 
presently be more particularly spoken of, this clause 
was so interpreted during reconstruction times as to 
give to the Federal Government an almost unlimited 
power of control for several years of the domestic 
affairs of those States that had been in rebellion 
against its authority. 

112 



FEDERAL CONTROL OF STATE GOVERNMENTS 

It will be noticed that the Constitution does not 
itself define the term ''republican form of govern- 
ment." It has, however, always been an accepted 
rule of construction that the technical and special 
terms used in the Constitution are to be given those 
meanings which they had at the time that instrument 
was framed. This is but reasonable, for, in default 
of anything to the contrary, those who drafted the 
Constitution are to be presumed to have intended the 
words which they used should have the meaning they 
knew them to have. For a definition, then, of "re- 
publican government" we must discover what such a 
political form was considered to be in 1787. Certainly 
we may say that the governments of the thirteen 
original States as they existed at the time the Con- 
stitution was drafted must have been considered as 
illustrating the republican type. Furthermore, the 
constitutions of all those States which have been ad- 
mitted to the Union since 1787 must be regarded as 
having been impliedly declared republican by Con- 
gress at the time of the giving of its assent to their 
entrance into the Union. The late Judge Cooley, in 
his "Principles of Constitutional Law," ^ has perhaps 
defined the term as satisfactorily as any one. "By a 
republican form of government," he says, "is under- 
stood a government by representatives chosen by the 
people; and it contrasts on the one side with a de- 
mocracy, in which the people or community as an 
organized whole wield the sovereign powers of gov- 
ernment, and, on the other side, with the rule of one 
man as King, Emperor, Czar, or Sultan, or with that 
^Chap. XI. 
8 113 



THE AMERICAN CONSTITUTIONAL SYSTEM 

of one class of men, as an aristocracy. " ^ ' ' In strict- 
ness," Judge Cooley goes on to say, "a republican 
government is by no means inconsistent with mo- 
narchical forms, for a King may be merely an heredi- 
tary or elective executive while the powers of legisla- 
tion are left exclusively to a representative body 
freely chosen by the people. It is to be observed, how- 
ever, that it is a republican form of government 
that is to be guaranteed; and in the light of the un- 
doubted fact that by the Revolution it was expected 
and intended to throw off monarchical and aristo- 
cratic forms, there can be no question but that by a 
republican form of government was intended a gov- 
ernment in which not only would the people's repre- 
sentatives make the laws, and their agents administer 
them, but the people would also, directly or indirectly, 
choose the executive. But it would by no means fol- 
low that the whole body of people, or even the whole 
body of adult and competent persons, would be ad- 
mitted to political privileges ; and in any republican 

1 In some of the courts of the States direct legislation laws 
(referendum) have been held unconstitutional on the ground 
that their effect is to establish a democratic in the place of repub- 
lican, representative government. Thus, for example, in Rice v. 
Foster, 4 Harr,, 479, the Court of Delaware declared : "Although 
the people have the power, in conformity with its provisions, to 
alter the Constitution, under no circumstances can they, so long 
as the Constitution of the United States remains the paramount 
law of the land, establish a democracy or any other than a re- 
publican form of government ; " and the giving of a direct legis- 
lative power to the electorate, the court went on to hold, was, in 
effect, to establish a democracy. In Maynard v. Board, 84 Mich., 
228, the court suggested that "cumulative" voting is inconsis- 
tent with a republican form of government. 

114 



FEDERAL CONTROL OF STATE GOVERNMENTS 

State the law must determine the qualifications for 
admission to the elective franchise." 

The only instance in which the Federal Govern- 
ment had been called upon, before the Civil War, to 
construe this guaranty clause was in connection with 
the matter of Dorr's Rebellion in Rhode Island in 
1841. The salient facts of this incident were these. 
The constitution under which the people of Rhode 
Island had lived since the separation from England 
provided for a very limited suffrage. With the de- 
velopment of more democratic ideas this condition of 
affairs became very unsatisfactory to those who were 
thus denied the right to vote. Numerous attempts 
were made to have the constitution amended, but 
these were always defeated by the small oligarchy of 
legal voters who did not wish to see their special 
privileges extended. Finally, in 1841, mass meetings 
of the discontented were held, and without any in- 
struction or permission from the existing government 
the citizens were directed to elect, by a universal 
manhood suffrage, delegates to a constitutional con- 
vention. This was done, and at that convention a con- 
stitution was framed that later was adopted by a 
clear majority of the adult resident citizens of the 
State. Thereupon, the convention, meeting again, 
declared: "Whereas, by return of the votes upon the 
Constitution, it satisfactorily appears that the citi- 
zens of this State, in their original sovereign capa- 
city, have ratified and adopted said Constitution by 
a large majority ; and the will of the people, thus de- 
cisively known, ought to be implicitly obeyed and 
faithfully executed; We do therefore resolve and de- 

115 



THE AMERICAN CONSTITUTIONAL SYSTEM 

clare that said Constitution rightfully ought to be, 
and is, the paramount law and Constitution of the 
State of Rhode Island and Providence Plantations; 
and we further resolve and declare for ourselves and 
in behalf of the people whom we represent, that we 
will establish said Constitution and sustain and defend 
the same by all necessary means." Attempts were 
actually made to put into operation the government 
provided for in the instrument thus declared in force. 
Dorr being elected Governor under it. 

All of the above acts, it will be observed, were un- 
sanctioned by any law of the old de facto government. 
Upon an appeal being made by that government to 
the Federal Government for aid, the President of the 
United States recognized that government as the de 
jure government of the State and took steps to extend 
the aid that was requested. By this federal executive 
action two important facts were established with ref- 
erence to the "guaranty" clause of the federal Con- 
stitution. The first of these was that, according to 
this clause, the Federal Government was obligated to 
protect the several States not only against the at- 
tempts of foreign powers to impose upon them gov- 
ernments not of their own choosing, but against revo- 
lutionary action on the part of their own citizens. 
The second was that it was thus decided that it is not 
a violation of the provision that a state government 
shall be republican in form that it rested upon the 
legal will of a minority of its adult male citizens. In 
effect it was determined that the old government of 
Rhode Island being accepted as republican in form 
at the time that the State became a member of the 

116 



FEDERAL CONTROL OF STATE GOVERNMENTS 

Union, it could not be changed by any extra-legal 
means against the desire of those who by the old 
instrument were given the sole power of expressing 
the legal will of the State. This last clause "against 
the desire of those who by the old instrument were 
given the sole power of expressing the legal will of 
the State," is advisedly added, for, as repeated in- 
stances have shown, the Federal Government has not 
felt itself obligated under the guaranty clause to see 
to it that none of the state constitutions are ever 
amended or replaced by new instruments except in 
strict accordance with the provisions governing con- 
stitutional changes existing at the time the changes 
are made. When such changes, even though brought 
about in a manner not formally constitutional, have 
been accepted as valid by the old governments, the 
Federal Government has not felt itself obligated to 
interfere. But when, as was the case in Rhode Island, 
the revolutionary change is strenuously resisted by 
those exercising authority under the old instrument 
of government, the Federal Government, upon appeal 
to it, or possibly upon its own initiative, will almost 
surely consider itself called upon to recognize and 
support the old government. 

Precedent has also established the principle that 
wh^re there is a dispute in a State as to the de jure 
character of a particular organ of that government, 
as for example as to which of two individuals has 
been elected as chief executive, or which of two 
courts or legislatures is entitled to authority, the Fed- 
eral Government will not ordinarily interfere, being 
governed by the presumption that each state govern- 

117 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ment has within itself the means of deciding such con- 
tests. In some cases, however, it becomes indirectly- 
obligatory upon the General Government to decide 
the matter. This occurs when the action of state or- 
gans, the standing of which is in dispute, requires 
recognition or enforcement by the federal authorities. 
Thus, for instance, should each of two contesting state 
legislatures select and send Senators to Congress, it 
would be necessary for the United States Senate to 
decide which of the electing bodies was endowed with 
authority to act on that behalf for the State. 

The case of Luther v. Borden (7 How., 1), decided 
by the Supreme Court in 1845, arose out of the fol- 
lowing facts. Borden, acting under the authority of 
the old government of Rhode Island, had broken into 
the house of Luther who was at the time engaged in 
attempting to establish the government provided for 
by the Constitution that had been adopted in the 
popular, extra-constitutional manner spoken of above. 
Upon being sued in trespass by Luther, Borden justi- 
fied himself by the plea that he was acting under the 
authority of the legal government of the State. Lu- 
ther, upon his side, denied the de jure character of 
that government, and, therefore, its legal competence 
to empower Borden to exercise the authority he did. 
Thus the question as to which of the two governments 
was at that time the legal government of the State 
seemed squarely presented to the Court. That tri- 
bunal, however, did not feel itself obliged to pass upon 
the point, holding that the power to determine such a 
matter had been given by the Constitution to Con- 
gress, and by that body had been handed over, to the 

118 



FEDERAL CONTROL OF STATE GOVERNMENTS 

extent at least of determining when the Federal Gov- 
ernment should interfere, to the President. In the 
case at bar the President had recognized the legality 
of the old government and the propriety of this de- 
cision the Court declared it could not consider.^ 

When dealing with the subject of the readmission 
of the Southern States to federal privileges, we ad- 
verted to the fact that, acting under the authority 
assumed to be given it by the guaranty clause. Con- 
gress assumed an almost complete control over the 

1 " Under this article of the Constitution," said the Court, " it 
rests with Congress to decide what government is the estab- 
lished one in a State. For as the United States guarantee to 
each State a republican government. Congress must necessarily 
decide what government is established in the State before it can 
be determined whether it is republican or not. And when the 
Senators and Representatives of a State are admitted into the 
councils of the Union, the authority of the government under 
which they are appointed, as well as its republican character, is 
recognized by the proper constitutional authority. And its de- 
cision is binding on every other department of the government, 
and could not be questioned in a judicial tribunal. . . . So, too, 
as relates to the clause in the above-mentioned article of the 
Constitution, providing for eases of domestic violence. It rested 
with Congress, too, to determine upon the means proper to be 
adopted to fulfil this guarantee. They might, if they had deemed 
it most advisable to do so, have placed it in the power of a court 
to decide when the contingency had happened which required 
the Federal Government to interfere. But Congress thought 
otherwise. ... By this act (of February 28, 1795) the power of 
deciding whether the exigency had arisen upon which the govern- 
ment of the United States is bound to interfere, is given to the 
President. . . . And the President must, of necessity, decide 
which is the government, and which party is unlawfully arrayed 
against it, before he can perform the duty imposed upon him by 
the act of Congress." 

119 



THE AMERICAN CONSTITUTIONAL SYSTEM 

reconstruction of governments in those States. There 
can be no question, however, but that in doing so an 
interpretation was given to that clause which it is very 
difficult, upon strict principles of construction, to 
justify. Practical exigencies may have necessitated 
the federal authority that was exercised, but that vio- 
lence was done to the meaning of this clause must be 
admitted. A fair interpretation of this clause would 
have given to the Federal Government at the most 
nothing more than the right to assist the citizens of 
the several States in establishing and maintaining 
governments republican in form and loyal to the 
Union. When this clause was discussed in the Con- 
stitutional Convention of 1787 it was explained by one 
member that its object was "merely to secure the 
States against dangerous commotions, insurrections, 
and rebellions ; ' ' and Madison, writing in the ' ' Feder- 
alist, ' ' said : ' ' It may possibly be asked what need 
there could be of such a precaution, and whether it 
may not become a pretext for alteration in the state 
governments without the concurrence of the States 
themselves. These questions admit of ready answers. 
If the interposition of the General Government should 
not be needed, the provision for such an event will be 
a harmless superfluity only in the Constitution. But 
who can say what experiments may be produced by 
the caprice of particular States, by the ambition of 
enterprising leaders, or by the intrigues and influence 
of foreign powers? To the second question it may 
be answered, that if the General Government should 
interpose by virtue of this constitutional authority, it 
will be of course bound to pursue the authority. But 

120 



FEDERAL CONTROL OF STATE GOVERNMENTS 

the authority extends no further than a guaranty of 
a republican form of government, which supposes a 
preexisting government of the form which is to he 
guaranteed.^ As long, therefore, as the existing re- 
publican forms are continued by the States, they are 
guaranteed by the federal Constitution. Whenever 
the States may choose to substitute other republican 
forms, they have a right to do so, and to claim the 
federal guaranty for the latter. The only restriction 
imposed on them is, that they shall not exchange re- 
publican for anti-republican constitutions; a restric- 
tion, which, it is presumed, will hardly be considered 
as a grievance." 

Instead, however, of guaranteeing existing govern- 
ments in the Southern States, or of assisting their citi- 
zens in establishing republican governments, the 
Federal Government, in pursuance of the various Re- 
construction Acts passed by Congress, went on itself 
to assume the practical control of the establishment 
of new governments which they imposed upon the 
States against the will of the great bulk of their citi- 
zens. Furthermore, Congress even then refused to 
admit the States to a full enjoyment of constitutional 
rights until they had amended their constitutions in 
certain specific ways, and ratified the Fourteenth and 
Fifteenth Amendments to the federal Constitution. 
In so doing, not only was violence done to the guar- 
anty clause, but the States in question were deprived 
of that equality with the other States of the Union to 
which they were constitutionally entitled. 
1 Italics our own. 

121 



CHAPTER VII 

FEDERAL AND STATE AUTONOMY 

The general principle governing the exercise of gov- 
ernmental powers in the American State is that the 
powers of the Federal Government and those of the 
individual States shall be kept as distinct and inde- 
pendent as possible. Thus, as differing from almost 
all, if not all, of the other federal States of the world, 
there is provided in the American State a complete 
governmental machinery fully equipped with its own 
officials for the exercise of the powers of the Central 
Government, and, distinct therefrom, an equally com- 
plete governmental machinery in each of the constitu- 
ent Commonwealths for the performance of their sev- 
eral functions. 

This separation of the federal and state authorities 
and magistracies is maintained by the enforcement of 
the following rules: 

First, no individual Commonwealth is permitted in 
any way to interfere with the operation of a federal 
governmental organ when operating within its consti- 
tutional province; nor, on the other hand, may the 
United States interfere in any way with the exercise 
by a State of any one of its constitutional powers. 

122 



FEDERAL AND STATE AUTONOMY 

When, however, there is an apparent conflict of pow- 
ers, the conflict, as we have already learned, is consid- 
ered, in the last instance, by the federal Supreme 
Court ; and where the conflict is shown to be real, the 
State has to yield to the United States. ^^ ~~ 

Secondly, it is held that though it is constitutional 
for the United States to permit or even to request a 
state official to perform a federal service, such state 
official cannot be compelled to do so. The same is true 
as to the performance by a federal official of a state 
duty. The reason for this rule has been declared to 
be that otherwise it would be theoretically possible for 
the one government so to burden with its own duties 
the officials of the other government as seriously to 
interfere with the proper performance by those offi- 
cials of the duties Jaid upon them by their own gov- 
ernments. 

That a State may not interfere with a federal 
agency was settled once for all by the decision of the 
Supreme Cour! in McCulloch v. Maryland. This case 
was all the stronger in that the federal agency, with 
whose activity it was alleged that Maryland had at- 
tempted to interfere by taxing it, was not an agency 
absolutely essential to the National Government nor 
expressly provided for by the Constitution. The 
power to establish a National Bank was at most only 
an implied one, and, in fact, its constitutionality was 
very widely denied, and years after this, a bill pro- 
viding for the establishment by the National Govern- 
ment of a similar institution was vetoed by President 
Jackson upon the ground of its unconstitutionality. 
But in this case Maryland had not only denied the 

123 



THE AMERICAN CONSTITUTIONAL SYSTEM 

constitutionality of the bank but had taken the posi- 
tion that, even were it constitutional, she had, under 
the general power reserved to her of taxing all prop- 
erty situated within her territorial limits, the right 
to tax such branches of the bank as might be located 
within her borders. Thus, in this case, the State of 
Maryland did not claim that she might directly and 
deliberately interfere with the operation of a federal 
law, but that the exercise by her of an otherwise le- 
gitimate authority could not be declared unconstitu- 
tional simply upon the ground that, indirectly, or by 
remote possibility, its effect was, or might be, to in- 
terfere with the exercise of a legitimate federal power. 
In other words, the State took the ground that, though, 
as occupying spheres of authority distinct from that 
of the Union, the States might not directly interfere 
with the exercise of the constitutional powers of the 
General Government, yet, while acting within their 
reserved spheres of authority, the States were as in- 
dependent and sovereign as was the* Union while 
operating within its constitutional sphere; and that, 
therefore, their direct interests, within such spheres, 
might not properly be subordinated to the merely in- 
direct interests of the Union. This position the Su- 
preme Court declared an invalid one. The reasoning 
of Marshall, who rendered the opinion, was as follows : 
''The sovereignty of a State," he declared, ''extends 
to everything which exists by its own authority, or is 
introduced by its permission; but does it extend to 
those means which are employed by Congress to carry 
into execution powers conferred on that body by the 
people of the United States? We think it demonstra- 

124 



FEDERAL AND STATE AUTONOMY 

ble that it does not. Those powers are not given by 
the people of a single State. They are given by the 
people of the United States to a government whose 
laws, made in pursuance of the Constitution, are de- 
clared to be supreme," Then, after referring to the 
fact that the power to tax might be used to destroy, 
he continued: ''That there is a plain repugnance in 
conferring on one government power to control the 
constitutional measures of another, which other with 
respect to those very measures is declared supreme 
over that which exerts the control . . . [is a] propo- 
sition not to be denied. ... If the States may tax 
one instrument employed by the government in the 
execution of its poAvers, they may tax any and every 
instrument. They may tax the mail; they may tax 
the mint; they may tax patent rights; they may tax 
the papers of the custom-house ; they may tax judicial 
processes; they may tax all the means employed by 
the government to an excess which would defeat all 
the ends of government. This Was not intended by 
the American people. They did not design to make 
their government dependent on the States. . . . The 
Court has bestowed on this subject its most deliberate 
consideration. The result is a conviction that the 
States have no power by taxation, or otherwise, to 
retard, imx)ede, burden, or in any manner control the 
operations of the constitutional laws enacted by Con- 
gress to carry into execution the powers vested in the 
General Government. This is, we think, the unavoid- 
able consequence of that supremacy which the Consti- 
tution has declared." 

In subsequent cases, following out the principle 
125 



THE AMERICAN CONSTITUTIONAL SYSTEM 

thus laid down, the Supreme Court has declared that 
the States may not tax the salary or emoluments of 
an officer of the United States (Dobbins v. Commis- 
sioners of Erie Co., 16 Pet., 435), nor United States 
bonds (Weston v. Charleston, 2 Pet., 449), nor inter- 
state commerce (Brown v. Maryland, 12 Wh., 419). 
Attempts have been made to push this freedom of 
federal officials from state interference to an extent 
which, if logically followed out, would place them al- 
most wholly outside of the control of the ordinary 
laws of the State. Thus it was asserted that a State 
might not even tax the private property of a federal 
official, though this property were in no way concerned 
with the exercise of his federal duties by that official. 
But this extension of the principle the Supreme Court 
refused to sanction. In National Bank v. Common- 
wealth (9 Wall., 353) it declared: ''It certainly can- 
not be maintained that banks or other corporations or 
instrumentalities of the government are to be wholly 
withdrawn from the operation of state legislation. 
The most important agents of the Federal Government 
are its officers, but no one will contend that when 
a man becomes an officer of the government he ceases 
to be subject to the laws of the State. The principle 
we are discussing has its limitation, a limitation grow- 
ing out of the necessity on which the principle itself 
is founded. That limitation is that the agencies of 
the Federal Government are only exempted from 
state legislation, so far as the legislation may interfere 
with or impair their efficiency in performing the 
functions by which they are designed to serve that 
government. Any other rule would convert a prin- 

126 



FEDERAL AND STATE AUTONOMY 

ciple founded alone in the necessity of securing to 
the government of the United States the means of 
exercising its legitimate powers, into an unauthorized 
and unjustifiable invasion of the rights of the States. 
The salary of a federal officer may not be taxed; he 
may be exempted from any personal service which 
will interfere with the discharge of his official duties, 
because those exemptions are essential to enable him 
to perform those duties. But he is subject to all the 
laws of the State which affect his family or social re- 
lations, or his property, and he is liable to punishment 
for crime, though that punishment be imprisonment 
or death. So of the [federal] banks. They are sub- 
ject to the laws of the State, and are governed in their 
daily course of business far more by the laws of the 
State than of the Nation. All their contracts are gov- 
erned and construed by state laws. Their acquisition 
and transfer of property, their right to collect their 
debts, and their liability to be sued for debts, are all 
based on state law. It is only when the State inca- 
pacitates the banks from discharging their duties to 
the government that it becomes unconstitutional." 

In the case of the Union Pacific Ry. v. Peniston (18 
Wall., 5) the Court again laid down the following 
principle according to which should be judged the con- 
stitutionality of state taxation laws the effect of which 
might be more or less remotely to affect federal agen- 
cies. ''It cannot be," the court said, ''that a state 
tax which remotely affects the efficient exercise of a 
federal power is for that reason alone inhibited by 
the Constitution. To hold that would be to deny to 
the State all power to tax persons or property. Every 

127 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tax levied by a State withdraws from the reach of 
federal taxation a portion of the property from which 
it is taken, and to that extent diminishes the subject 
upon which federal taxes may be laid. The States 
are, and they ever must be, coexistent with the Na- 
tional Government. Neither may destroy the other. 
Hence the federal Constitution must receive a practi- 
cal construction. Its limitations and its implied pro- 
hibitions must not be extended so far as to destroy 
the necessary powers of the States, or prevent their 
efficient exercise. ... It is therefore manifest that 
exemption of federal agencies from state taxation is 
dependent, not upon the nature of the agents, or upon 
the mode of their constitution, or upon the fact that 
they are agents, but upon the effect of the tax; that 
is, upon the question whether the tax does' in truth 
deprive them of power to serve the government as they 
are intended to serve it, or does hinder the efficient 
exercise of their power. A tax upon their property 
has no such necessary effect. It leaves them free to 
discharge the duties they have undertaken to perform. 
A tax upon their operations is a direct obstruction to 
the exercise of federal powers."^ 

^ The respective spheres of the federal and state governments 
have been most carefully worked out by the courts in connection 
with the subject of interstate commerce with a result perfectly 
in accord with the principle above stated. Thus it has been 
held that the control of interstate comm.erce being given to the 
Federal Government, the States may not interfere either by way 
of taxation or by an exercise of their so-called "Police Powers." 
They may, however, it has been decided, tax simply as property 
those instruments of interstate commerce that are located within 
their respective territorial limits. Also it has been held that 

128 



FEDERAL AND STATE AUTONOMY 

Just as it has been held that the State may not in- 
terfere with the operation of a federal organ or the 
exercise of his duty by a federal official, so, recipro- 
cally, it has been held that the United States may not 
arbitrarily interfere with a state official or with the 
operation of a state organ. Such an interference has 
been held justified only when necessary for the effi- 
cient performance of some constitutional duty of its 
own. 

It will be seen that though every effort is made 
to keep the governments of the States and of the 
Union as free as possible from the interference of the 
one by the other, the two governments do not stand 
upon exactly the same plane of authority; for 
whereas a State may not, even in the direct and in- 
genuous exercise of one of its constitutional powers, 
interfere indirectly with a federal officer or organ, the 
Federal Government may interfere directly with a 
state agency if by so doing the efficient exercise of 
one of its own constitutional powers be advanced. 
Thus the Supreme Court held in Veazie Bank v. 
Fenno (8 Wall., 533) that in order to regulate the 
currency of the country, the United States might, 
under its right to regulate the currency of the coun- 
try, constitutionally levy a tax upon the circulating 
notes of state banks for the purpose of driving them 

the value of such property for taxation may be determined by 
the use to which it is put, namely, for the interstate transporta- 
tion of persons and merchandise (Adams Express Co. v. Ohio 
State Auditor, 165 U. S., 194). Every attempt upon the part of 
the States to do more than this, however, and to interfere with 
the actual carrying on of interstate commerce, has been defeated 
by the federal courts. 

9 129 



THE AMERICAN CONSTITUTIONAL SYSTEM 

out of existence, even though it had previously de- 
clared in one of the decisions of that Court itself, that 
the States had the constitutional right to charter such 
banks (Briscoe v. Bank of Kentucky, 11 Pet., 257). 

But here also the Supreme Court has declared that 
the principle shall not be extended to an illegitimate 
extent. In the case of Collector v. Day (11 Wall., 
113) it held that the Federal Government could not 
levy an income tax upon the salaries of state officials, 
and in justifying its decision took the ground that a 
distinction is to be made between those agencies of the 
States, the existence and free operation of which are 
essential to their efficient operation, and those which, 
though of value to them, are not essential to their 
welfare. The former, it held, might not be inter- 
fered with by the General Government, but the latter 
might. In the opinion rendered in this case attention 
was called to the fact that in the case of Veazie Bank 
V. Fenno, the existence of this distinction w^as sug- 
gested, the Court saying in that case with reference 
to the question whether there might not be a tax on 
a state agency that Congress could not constitutionally 
]eYy: "We do not say that there may not be such a 
tax. It may be admitted that the reserved rights of 
the States, such as the right to pass laws, to give effect 
to laws through executive action, to administer justice 
through the courts, and to employ all necessary agen- 
cies for the legitimate purposes of state government, 
are not proper subjects of the taxing power of Con- 
gress." And in Collector v. Day the Court said: "If 
the means and instrumentalities employed by that 
[the General] Government to carry into operation the 

130 



FEDERAL AND STATE AUTONOMY 

powers granted to it are, necessarily, and, for the 
sake of self-preservation, exempt from taxation by the 
States, why are not those of the States depending 
upon their reserved powers, for like reasons, equally 
exempt from federal taxation? Their unimpaired ex- 
istence in the one case is as essential as in the other. 
It is admitted that there is no express provision in 
the Constitution that prohibits the General Govern- 
ment from taxing the means and instrumentalities of 
the States, nor is there any prohibiting the States from 
taxing the means and instrumentalities of that gov- 
ernment. In both cases the exemption rests upon 
necessary implication, and is upheld by the great law 
of self-preservation,— as any government, whose 
means employed in conducting its operations, if sub- 
ject to the control of another and distinct government, 
can exist only at the mercy of that government. Of 
what avail are these means if another power may tax 
them at discretion?" 

This relation of the federal power to state govern- 
mental instrumentalities has been further illustrated 
in the matter of the Federal Government's right of 
Eminent Domain, it having been held that the General 
Government has an implied right of eminent domain 
which it may exercise within a State with or without 
that State's consent (Monongahela Navigation Co. v. 
U. S., 148 U. S., 312; Chappell v. U. S., 160 U. S., 
499), but that it may not, in so doing, take for its own 
use land or other property employed by the State in 
performance of its essential governmental functions. 

Though, as we have seen, it is a general principle 
of the American Constitutional system that the fed- 

131 



THE AMERICAN CONSTITUTIONAL SYSTEM 

eral and state governments shall interpret and en- 
force their own laws respectively, there is one impor- 
tant exception to this rule. This exception is that to 
the federal courts is given by the Constitution juris- 
diction of all suits between two or more States, 
between a State, as plaintiff, and citizens of another 
State, between citizens of different States, between 
citizens of the same State claiming lands under grants 
of different States, and between a State, or the citizens 
thereof, and foreign States, citizens or subjects. Thus 
it happens that the federal courts, obtaining jurisdic- 
tion simply because of the character of the parties, are 
very frequently called upon to decide cases involving 
the construction and enforcement of state laws, and 
are thus called upon, as it were, to take the place of 
the state judicial tribunals. From the very beginning, 
however, the federal courts, when so acting, have con- 
sidered themselves as but quoad hoc agents of the 
States and as such have almost uniformly held them- 
selves obligated to follow in their construction of the 
state laws the interpretations given to them by the 
courts of the State that enacted them. Thus the Ju- 
diciary Act of 1789 declared (Sec. 34) : *'The laws of 
the several States except where the Constitution, 
treaties, or statutes of the United States shall other- 
wise require or provide, shall be regarded as rules of 
decision in the trials at common law in the courts of 
the United States in cases where they apply. ' ' And in 
Elmendorf v. Taylor (10 Wh., 152) Marshall said: 
"The judicial department of every government, where 
such a department exists, is the appropriate organ for 
construing the legislative acts of that government. 

132 



FEDERAL AND STATE AUTONOMY 

. . . On this principle the construction given by this 
court to the Constitution and laws of the United States 
is received by all as the true construction; and on 
the same principle the construction given by the 
courts of the several States to the legislative acts of 
those States is received as true, unless they come in 
conflict with the Constitution, laws, and treaties of 
the United States." Again, in Shelby v. Guy (11 
AVh., 361) the Supreme Court declared: ''Nor is it 
questionable that a fixed and received construction of 
their respective statute laws in their own courts makes, 
in fact, a part of the statute law of the country, how- 
ever we may doubt the propriety of that construction. 
It is obvious that this admission may at times involve 
us in seeming inconsistencies, as when States have 
adopted the same statutes and their courts differ in 
their construction. Yet that course is necessarily in- 
dicated by the duty imposed on us to administer, as 
between certain individuals, the laws of their respec- 
tive States according to the best lights we possess of 
what those laws are." In Green v. Neal (6 Pet., 291) 
it was held that where a state court had changed its 
former construction of law, the federal courts, upon 
a subsequent case coming before them should do like- 
wise and thus keep ever in accord with the latest 
decisions of the state courts. 

There are, however, certain classes of cases in which 
the federal courts have not held themselves bound to 
follow state precedents, and have thus built up for 
themselves what may be called a federal common law 
as to the subjects concerned. Thus they have followed 
this practice as to general principles of criminal law, 

133 



THE AMERICAN CONSTITUTIONAL SYSTEM 

commercial law, and equity jurisprudence. Also the 
federal courts upon a few occasions have declined to 
follow the last decisions of the state courts reversing 
former decisions, when to do so would have been to 
render void contracts entered into upon the faith of 
the first decisions.^ 

1 Cf. Gelpcke v. Dubuque, 1 Wall., 175, and McCuUough v. 
Virginia, 172 U. S., 102. 



134 



CHAPTER VIII 

FEDERAL AND STATE POWERS 

From the control that the Federal Government may 
constitutionally exercise over the form of the govern- 
ments of the several States, we now turn to a consid- 
eration of the general principles in accordance with 
which the powers of government are divided between 
the federal and state governments. 

In the American State the totality of governmental 
powers is divided into the following classes: 

1. The powers, the exclusive exercise of which is. 
delegated to the General Government. 

2. The powers— commonly called "concurrent"— 
that may be exercised by the General Government, but 
which, when not so exercised, may be exercised by the 
individual States. 

3. The powers, the exercise of which is prohibited 
to the General Government. 

4. The powers, the exclusive exercise of which is re- 
served to the several States. 

5. The powers, the exercise of which is prohibited 
to the States. 

From the above it will be seen that the powers of 
the Federal Government are embraced within the first 

135 



THE AMERICAN CONSTITUTIONAL SYSTEM 

two classes— the distinction between the two classes 
being merely that the exercise of the powers of the 
first class is exclusively vested in the General Govern- 
ment, while those of the second may, in default of 
federal exercise, be made use of by the States. 

Some of the powers granted by the Constitution to 
the general government are expressly denied to the 
States. As to the exclusive character of the federal 
jurisdiction over them there cannot be, of course, any 
question. It has, however, been often a matter diffi- 
cult of determination whether or not various of the 
powers given to the United States, but not expressly 
made exclusive or denied to the States, are so exclu- 
sively subject to federal control that no exercise of 
them by the States is under any circumstances per- 
missible. Shortly stated, the Supreme Court has 
guided itself in these cases by the following principle. 
As regards generally the powers granted to the Na- 
tional Government it has held that there is a differ- 
ence between those which are of such a character that 
the exercise of them by the States would be, under 
any circumstances, inconsistent with the general the- 
ory or national polity of the Constitution, and those 
not of such a character. As regards this latter class, 
the Supreme Court has held that as long as Congress 
does not see fit to exercise them, the States may do so. 
Any laws thus passed by the States are, however, 
of course subject to abrogation at any time by the 
enactment by Congress of laws governing the same 
subjects.! 

1 By the enactment of a federal law a state law governing the 
same subject is not nullified but merely suspended during the 

136 



FEDERAL AND STATE POWERS 

In the early case of Sturges v. Crowninshield (4 
Wh., 122) Chief Justice Marshall, in reference to the 
matter of bankruptcy, laid down this distinction of 
which we have been speaking, between the exclusive 
and concurrent powers of the Federal Government. 
But it is especially in connection with the subject of 
Interstate Commerce that the principles governing 
this distinction have been most carefully worked out. 
In Houston v. Moore (5 Wh., 1) Justice Johnson 
said : ' ' The Constitution containing a grant of powers 
in many instances similar to those already existing in 
the state governments, and some of those being of vital 
importance also to state authority and state legisla- 
tion, it is not to be admitted that the mere grant of 
such powers in affirmative terms to Congress, does, 
per se, transfer an exclusive sovereignty on such sub- 
jects to the latter. On the contrary, a reasonable in- 
terpretation of that instrument necessarily leads to 
the conclusion that the powers so granted are never 
exclusive of similar powers existing in the States, un- 
less where the Constitution has expressly, in terms, 
given an exclusive power to Congress, or the exercise 
of a like power is prohibited to the States, or there is 
a direct repugnancy or incompatibility in the exercise 
of it by the States. The example of the first class is to 
be found in the exclusive legislation delegated to 
Congress over places purchased by the consent of the 
legislature of the State in which the same shall be, 
for forts, arsenals, dock-yards, etc. ; of the second 

existence of the federal statute. •Upon the repeal of the federal 
statute, the state law again operates without any reenactment by 
the State. 

137 



THE AMERICAN CONSTITUTIONAL SYSTEM 

class, the prohibition of a State to coin money or emit 
bills of credit; of the third class, as this court have 
already held, the power to establish a uniform rule 
of Naturalization (Chirac v. Chirac, 2 Wh., 259), 
and the delegation of admiralty and maritime juris- 
diction (Martin v. Hunter, 1 Wh., 304). In all other 
cases not falling within the classes already mentioned, 
it seems unquestionable that the States retain concur- 
rent authority with Congress, not only upon the let- 
ter and spirit of the eleventh (tenth?) amendment of 
the Constitution, but upon the soundest principles of 
general reasoning." 

So, later, in Cooley v. Board of Wardens (12 How., 
300), the court declared: "The grant of commercial 
power to Congress does not contain any terms which 
expressly exclude the States from exercising an au- 
thority over its subject matter. If they are excluded 
it must be because the nature of the power thus 
granted to Congress requires that a similar authority 
should not exist in the States." 

Still later, in Cardwell v. American River Bridge 
Co. (113 U. S., 205), the court, after quoting a num- 
ber of cases, says : ' ' These cases illustrate the general 
doctrine now fully recognized, that the commercial 
power of Congress is exclusive of state authority only 
when the subjects upon which it is exerted are na- 
tional in their character and admit and require uni- 
formity of regulations affecting alike all the States, 
and that when the subjects within that power are local 
in their nature or operation, or constitute mere aids to 
commerce, the States may provide for their regula- 
tion and management until Congress intervenes and 

138 



FEDERAL AND STATE POWERS 

supersedes their action." Applying this principle, 
the Supreme Court has held that the States may legis- 
late regarding such matters as pilotage, wharves, har- 
bors, etc. ; but may not, even though Congress has not 
acted, take any steps that in effect will operate to 
hinder or regulate the carrying on of interstate com- 
merce itself. "The power of Congress," has said the 
Court in Brown v. Houston (114 U. S., 622), ''is cer- 
tainly so far exclusive that no State has power to 
make any law or regulation which will affect the free 
and unrestrained intercourse and trade between the 
States, as Congress has left it, or which will impose 
any discriminating burden or tax upon the citizens or 
products of other States coming or brought within its 
jurisdiction. All laws and regulations are restrictive 
of natural freedom to some extent, and where no regu- 
lation is imposed by the government which has the 
exclusive power to regulate, it is an indication of its 
will that the matter shall be left free. So long as 
Congress does not pass any law to regulate commerce 
among the several States, it thereby indicates its will 
that the commerce shall be free and untrammeled, 
and any regulation of the subject by the States is re- 
pugnant to such freedom." 

It will have been noticed that in speaking of the 
powers possessed by the General Government, the 
term "delegated" has been used, whereas, in speak- 
ing of the powers possessed by the States, the word 
"reserved" has been employed. This has been done 
advisedly, the fundamental principle governing the 
division of powers between the General Government 
and the States being that the former possesses only 

139 



THE AMERICAN CONSTITUTIONAL SYSTEM 

those powers that are by the Constitution granted to 
it, whereas the States are to be construed as entitled 
to exercise all powers except those expressly or by 
implication denied to them by the Constitution. Thus 
the General Government is commonly spoken of as 
one of enumerated and the state governments as gov- 
ernments of unenumerated powers. 

This distinction would in all probability have been 
recognized and adopted by the Supreme Court as a 
logical corollary from the general character of the 
Constitution, had there been no express direction in 
that instrument itself to such effect. Out of super- 
abundant caution, however, the Tenth Amendment 
was adopted, which reads: ''The powers not delegated 
to the United States by the Constitution, nor pro- 
hibited by it to the States, are reserved to the States 
respectively, or to the people." 

The phrase "or to the people" covers those powers 
which, though constitutionally exercisable by the 
States, for aught the federal Constitution has to say, 
are by their own state constitutions denied to their 
respective governments. Thus the federal and the 
state constitutions differ in this important respect that 
the grants of the former operate to endow the General 
Government with powers that it would not otherwise 
possess, whereas the provisions of the latter in the 
main operate to deprive the governments which they 
create of powers they otherwise would possess. 

Except when expressly limited,— as, for instance, 
where the power which is given to levy taxes is re- 
stricted by the provisions that ''all duties, imposts, 
and excises shall be uniform throughout the United 

140 



FEDERAL AND STATE POWERS 

States," that "no tax or duty shall be laid on articles 
exported from any State," that ''no capitation or 
other direct tax shall be laid, unless in proportion to 
the census or enumeration hereinbefore directed to be 
taken," and that "no preference shall be given by any 
regulation of commerce or revenue to the ports of 
one State over those of another,"— a power granted 
to Federal Government is construed to be absolute in 
character. Thus it follows that, though the presump- 
tion is contra when the question is as to the possession 
of a power by General Government, the presumption 
is in its favor when the question is as to whether a 
power which is admitted to be a federal one is abso- 
lute or limited. 

Express and Implied Powers. Though the Federal Gov- 
ernment is one of enumerated powers, it is one that 
has from the very beginning been construed to possess 
not simply those powers that are specifically or ex- 
pressly given it, but also those necessary and proper 
for the effective exercise of such express powers. Af- 
ter enumerating the various powers that Congress is 
to possess, the Constitution declares (Art. I, Sec. 8), 
"[The Congress shall have power] to make all laws 
which shall be necessary and proper for carrying into 
execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the 
United States or in any department or officer thereof." 
Furthermore, it will be noticed that in the Tenth 
Amendment, above quoted, the powers reserved to the 
States or to the people are not those not expressly dele- 
gated to the United States, but simply those not dele- 

141 



THE AMERICAN CONSTITUTIONAL SYSTEM ] 

gated. This is significant in view of the fact that 
in the corresponding section in the Articles of Con- 
federation the word ''expressly" is carefully in- 
serted.^ 

From the very beginning the Supreme Court of the 
United States has declared that the powers thus im- 
pliedly granted the General Government as necessary 
and proper for the exercise of the powers expressly 
given, are to be liberally construed. The words 
''necessary and proper" it early held were not to be 
interpreted as endowing the General Government 
simply with those powers indispensably necessary for 
the exercise of its express powers, but as equipping it 
with any and every authority the exercise of which 
may in any way really assist the Federal Govern- 
ment in effecting any of the purposes the attainment 
of which is within its constitutional sphere. Thus in 
the case of United States v. Fisher (2 Cr., 358), de- 
cided in 1804, Marshall declared: "It would be incor- 
rect and would produce endless difficulties if the 
opinion should be maintained that no law was author- 
ized which was not indispensably necessary to give 
effect to a specified power. Where various systems 
might be adopted for that purpose, it might be said 
with respect to each that it was not necessary because 
the end might be obtained by other means. Congress 
must possess the choice of means which are in fact 
conducive to the exercise of a power granted by the 
Constitution." 

1 Article II. " Each State retains its sovereignty, freedom and 
independence, and every power, jurisdiction and right, which is 
not by this confederation expressly delegated to the United States 
in Congress assembled." 

142 



FEDERAL AND STATE POWERS 

The classic statement, however, of the scope of the 
''implied" powers of Congress is of course that made 
by Marshall in the opinion which he rendered in the 
case of McCulloch v. Maryland and which we have 
already quoted in Chapter III of this work/ 

Reviewing the effect of this decision, it is seen that 
the words "and proper" as used in the phrase "neces- 
sary and proper" are construed not as declaring that 
a means selected by Congress shall be proper as well 
as necessary— that is, indispensable— for carrying into 
effect a specified power, but as qualifying and extend- 
ing the force of "necessary" so as to render consti- 
tutional the selection of any means that may be ap- 
propriate, that is, may in any way assist the General 
Government in the exercise of its constitutional 
functions. It need not be said, of course, that the 
question as to whether or not the particular means 
selected is the best possible means that might have 
been adopted is one for Congress to answer. All that 
the courts have to consider in passing upon its consti- 
tutionality is as to w^hether it is calculated in any 
appreciable degree to advance the constitutional end 
involved. 

One further important fact regarding the implied 
powers of Congress is to be noticed. This is that it 
has been held that a power when employed as inci- 
dental to the exercise of an express power may be 
used free from a constitutional limitation under which 
it would rest if exercised as an express power. Thus 
in Veazie Bank v. Fenno (8 Wall., 533) and Head 
Money Cases (112 U. S., 580) the Supreme Court de- 
cided that the power of taxation when used simply as 
1 See p. 44 f. 
143 



THE AMERICAN CONSTITUTIONAL SYSTEM 

a means for regulating commerce and currency, is not 
subject to the constitutional limitations under which 
it would rest if exercised for the purpose of raising a 
revenue. In the Head Money Cases the court de- 
clared, relative to a per capita tax levied by Congress 
upon persons, not citizens of the United States, coming 
to this country: "If this is an expedient regulation 
of commerce by Congress, and the end to be obtained 
is one falling within the power, the act is not void, 
because, within a loose and more extended sense than 
was used in the Constitution, it is called a tax. In the 
case of Veazie Bank v. Fenno, the enormous tax of 
eight per cent, per annum on the circulation of state 
banks, which was designed, and did have the effect, to 
drive all such circulation out of existence, was upheld 
because it was a means properly adopted by Congress 
to protect the currency which it had created. ... It 
was not subject, therefore, to the rules which would 
invalidate an ordinary tax pure and simple." 

Common Defense and General Welfare. Article I, 
Section 8, of the Constitution declares that the Con- 
gress shall have the power "to lay and collect taxes, 
duties, imposts, and excises, to pay the debts and pro- 
vide for the common defence and general welfare of 
the United States." 

The view has at times been advanced by those who 
desire to magnify the powers of the Federal Govern- 
ment that instead of construing this section as simply 
the grant of an authority to raise revenue in order to 
pay the debts and provide for the common defense 
and general welfare of the United States, it should 

144 



FEDERAL AND STATE POWERS 

be interpreted as conferring upon Congress two dis- 
tinct powers; namely: (1) the power of taxation; 
and (2) the power to provide for the common defense 
and general welfare. And, under the latter of these 
two grants, it has been argued that the Congress has 
the authority to exercise any power that it may think 
necessary or expedient for advancing the common 
defense or the general welfare of the United States. 
It scarcely needs be said that this interpretation has 
not been accepted by the courts. Were this view to 
be accepted the government of the United States 
would at once cease to be one of enumerated powers, 
for it would then be possible to justify the exercise of 
any authority whatsoever upon the ground that the 
general welfare would thereby be advanced. As Hare 
correctly says in his "American Constitutional Law," 
"a government authorized to provide for the common 
defense and general welfare is virtually absolute, be- 
cause it must determine what means are requisite for 
the end in view, and its decision must necessarily be 
binding on the courts. ' ' ^ 

Arguing in a somewhat similar manner, some have 
attempted to render the General Government virtually 
absolute by discovering in the words of the Preamble 
to the Constitution ^ a comprehensive grant of power. 
The Supreme Court has, however, never accepted this 

1 P. 242. 

2 " We the People of the United States, in order to form a 
more perfect Union, establish justice, insure domestic tranquillity, 
provide for the common defence, promote the general welfare, 
and secure the blessings of liberty to ourselves and our posterity, 
do ordain and establish this Constitution for the United States of 
America." 

1^ 145 



THE AMERICAN CONSTITUTIONAL SYSTEM 

view. The only force that may properly be given the 
Preamble is correctly stated by Story. ''The Pre- 
amble, ' ' he says, ' ' never can be resorted to, to enlarge 
the powers conferred on the General Government or 
any of its departments. It cannot confer any power 
per se, it can never amount by implication to an en- 
largement of any power expressly given. It can never 
be the legitimate source of any implied power when 
otherwise withdrawn from the Constitution. Its true 
office is to expound the nature, and extent, and appli- 
cation of the powers actually conferred by the Consti- 
\^ tion and not substantively to create them." ^ 

Most dangerous, however, of all the views that have 
been advanced to magnify the powers of the United 
States is that which ascribes to it so-called "inherent 
sovereign rights"— rights, that is, not implied in the 
grant of any of its express powers, but flowing from 
the fact of its sovereignty. This theory has played a 
certain part in our constitutional history for many 
years, but was especially pressed during the period 
following the Spanish-American War and before the 
decision of the recent Insular Cases. Thus, Senator 
Piatt of Connecticut declared in the Senate, December 
19, 1898, that the United States "possesses every sov- 
ereign power not reserved in its Constitution to the 
States or to the people; that the right to acquire ter- 
ritory was not reserved, and is, therefore, an inherent 
sovereign right; that it is a right upon which there is 
no limitation and with regard to which there is no 
qualification; that in certain instances the right may 
be inferred from specific clauses in the Constitution, 
1 "Commentaries on the Constitution," Sec. 462. 
146 



FEDERAL AND STATE POWERS 

but that it exists independent of the clauses; that in 
the right to acquire territory is found the right to 
govern it; that as the right to acquire is a sovereign 
and inherent right, the right to rule is a sovereign 
right not limited in the Constitution. ' ' ^ 

So, also. Senator Foraker of Ohio declared in the 
Senate, July 1, 1898, in response to a question as to 
the constitutional source whence he derived the power 
of the United States to annex foreign territory, that 
"the power was to be found inherent in our sover- 
eignty—attached to it necessarily as a part of our 
sovereignty as a nation," and "was also to be found 
in the Constitution— expressly conferred upon Con- 
gress by that provision of the Constitution which au- 
thorizes Congress to provide for the general welfare." 
When asked if he called this doctrine the "higher 
law," he replied: "The proposition is that it is in- 
herent in sovereignty to do whatever sovereignty may 
see fit to do, and among other things to acquire ter- 
ritory. "^ 

There can be no question as to the constitutional 
unsoundness, as well as of the revolutionary character, 
of the theory advanced in the foregoing quotations. 
To accept it would be at once to overturn the long 
line of decisions that have held the United States Gov- 
ernment to be one of hmited, enumerated powers. 

iSee "Congressional Record," XXXll Mo. 11, pp. 321-323. 

^Of substantially the same character are the arguments of 
Gardiner ("Our Right to Acquire and Hold Foreign Territory," 
Putnams, 1899) and of Magoon, Law Officer, War Department 
("Report on the Legal Status of the Territory and Inhabitants 
of the Islands Acquired by the United States during the War with 
Spain." Doc. 234, 56th Cong., 1st Session). 

U7 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Taney, in denying to the President the right to au- 
thorize a suspension of. the writ of habeas corpus, 
explicitly repudiated the doctrine. "Nor can any 
argument be drawn," he said, "from the nature of 
sovereignty, or the necessities of government for self- 
defense in times of tumult and danger. The Govern- 
ment of the United States is one of delegated and lim- 
ited powers. It derives its existence and authority 
altogether from the Constitution and neither of its 
branches can exercise any of the powers of government 
beyond those specified and granted" {ex parte Merry- 
man, Campbell's Reports, 246). 

Unfortunately, however, the Supreme Court has 
not always been so careful in denying the propriety 
of an argument based upon the inherent sovereign 
rights of the National Government. It has never ex- 
plicitly justified the exercise of a power by the Fed- 
eral Government upon this ground, but, obiter, has 
several times used language suggesting its validity. 
Thus, in the case of Knox v. Lee (12 Wall., 557), Jus- 
tice Bradley said: "The United States is not only a 
Government but it is a National Government, and 
the only government in this country that has the 
character of nationality. It is invested with power 
over all the foreign relations of the country, war, 
peace, and negotiations and intercourse with other 
nations; all of which are forbidden to the state gov- 
ernments. . . . Such being the character of the 
General Government it seems to be a self-evident 
proposition that it is invested with all those inherent 
and implied powers which, at the time of adopting 
the Constitution, were generally considered to belong 

148 



FEDERAL AND STATE POWERS 

to every government as such, and as being essential 
to the exercise of its functions. If this proposition 
be not true, it certainly is true that the government 
of the United States has express authority in the 
clause last quoted, to make all such laws (usually re- 
garded as inherent and implied) as may be necessary 
and proper for carrying on the government as consti- 
tuted and vindicating its authority and existence." 

Assertions of a similarly general character are also 
to be found in the opinions rendered in the cases of 
Mormon Church v. United States (136 U. S., 1) and 
Jones V. United States (137 U. S., 202). These decla- 
rations of the Supreme Court in all of these cases 
were, however, as has been said, obiter dicta, the de- 
cisions rendered not being based upon them ; and it is 
to be observed that in the recent Insular Cases no sup- 
port was given to the theory. 

A constitutional principle that is itself perfectly 
A^alid but which is sometimes confused with the one we 
have just been discussing, or rather adduced as a sup- 
port for it,^ is that which holds the United States im- 
pliedly equipped with all the powers necessary and 
proper for maintaining its international rights and 
fulfilling its international obligations. Inasmuch as 
exclusive control of foreign relations has been by the 
Constitution expressly intrusted to the United States, 
it follows as a proper implication that it is endowed 
with commensurable powers.^ But this is a very dif- 
ferent doctrine from that which justifies the exercise 

'^ E. g.y by Senator Piatt in the speech above referred to. 
2 See United States v. Arjona, 120 U. S., 479; Chinese Ex- 
clusion Cases, 130 U. S., 581. 

149 



THE AMERICAN CONSTITUTIONAL SYSTEM 

of a power by the United States without reference to 
any authority specifically given, but simply upon the 
ground that it is an ''inherent sovereign right." 

Turning now from the consideration of the powers 
of the Federal Government to an examination of the 
limitations imposed by the Constitution upon its au- 
thority, we lind that these, like its powers, are of two 
kinds, express and implied. The implied limitations 
include, first, all those which arise from the fact that 
the Government of the United States is one of enu- 
merated powers, that is to say, one that may not exer- 
cise any power not expressly or impliedly given it; 
and secondly, those which arise from the fact that the 
Constitution looks to a preservation of the several 
States in the autonomy that is allotted them, and 
that, therefore, the Federal Government may not un- 
necessarily interfere with the free operation of state 
governments either by way of imposing upon them 
the performance of federal duties, or by unduly re- 
straining their freedom of action.^ 

The express limitations upon the powers of the 
Federal Government are in part limitations upon the 
manner of exercise of powers expressly given, as, for 
example, that direct taxes shall be apportioned among 
the several States according to their respective popu- 
lations, that naturalization, bankruptcy, and tariff 
laws shall be uniform throughout the United States, 
etc. ; and in part absolute prohibitions upon the exer- 
cise, in any manner, of the powers specified. These 
absolute prohibitions are to be found, in the main, in 
Section 9 of Article I and in the first eight Amend- 
ments. 

1 This point will be more fully discussed in the next chapter. 
150 



FEDERAL AND STATE POWERS 

From the very first it has been construed by the 
Supreme Court that the prohibitions contained in 
these Amendments apply only to the United States. 
This was first authoritatively declared by Marshall 
in the case of Barron v. Baltimore (7 Pet., 243), de- 
cided in 1833. In his opinion rendered in that case, 
Marshall said: ^'The plaintiff . . . insists that the 
[Fifth] Amendment being in favor of the liberty of 
the citizen, ought to be so construed as to restrain the 
legislative power of a State as well as that of the 
United States. . . . The question thus presented is, we 
think, of great importance, but not of much difficulty. 
The Constitution was ordained and established by the 
people of the United States for themselves, for their 
own government, and not for the government of the 
individual States. Each State established a constitu- 
tion for itself, and in that constitution provided such 
limitations and restrictions on the powers of its par- 
ticular government as its judgment dictated. The 
people of the United States framed such a govern- 
ment for the United States as they supposed best 
adapted to their situation, and best calculated to pro- 
mote their interests. The powers they conferred on 
the Government were to be exercised by itself ; and the 
limitations on power, if expressed in general terms, 
are naturally, and we think necessarily, applicable to 
the governments created by the instrument. They are 
limitations of power granted in the instrument itself; 
not of distinct governments framed by different per- 
sons and for different persons." 

The correctness of this decision has never been 
questioned either by the federal or state courts. How- 
ever, as we shall notice in a later chapter, the argu- 

151 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ment has been made, but not accepted as valid by the 
Supreme Court, that that clause of the Fourteenth 
Amendment which provides that ''No State shall make 
or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States, ' ' should 
be so construed as to render the provisions of the first 
eight Amendments operative upon the States. 

In regard to these first eight Amendments it may be 
said that it was only an excess of caution that re- 
quired their incorporation in the Federal Constitu- 
tion. Inasmuch as the United States was to have only 
the powers expressly or impliedly given it, it would 
have been, in the absence of such express limitations, 
without the authority to exercise the powers that these 
amendments enumerate.^ 

1 Indeed, in the eyes of some, of Hamilton at least, there were 
affirmative reasons why these limitations should not be expressly 
stated. In the "Federalist," No. 84, after showing that Bills of 
Rights were "stipulations between Kings and their subjects, 
abridgments of prerogative in favor of privilege, reservations of 
rights not surrendered to the prince," whereas in constitutions 
"the people in reality surrender nothing," Hamilton proceeds : 
" I go further and affirm, that bills of rights, in the sense and to 
the extent they are contended for, are not only unnecessary in 
the proposed Constitution, but would be even dangerous. They 
would contain various exceptions to powers not granted ; and on 
this very account, would afford a colorable pretext to claim more 
than were granted. For why declare that things shall not be 
done which there is no power to do ? Why, for instance, should 
it be said, that the liberty of the press shall not be restrained, 
when no power is given by which restrictions may be imposed ? 
. . . Men disposed to usurp . . . might urge with a semblance 
of reason, that the Constitution ought not to be charged with the 
absurdity of providing against the abuse of an authority which 
was not given, and that^the provision against the liberty of th^ 

152 



FEDERAL AND STATE POWERS 

Having described, in general terms, the manner in 
which the powers and limitations of the General Gov- 
ernment are determined, little needs to be said re- 
garding the powers and limitations of the States. The 
States have, of course, as specifically provided in the 
Tenth Amendment, all powers except those delegated 
—expressly or impliedly— to the United States, and 
those prohibited to them by the Constitution. The 
powers expressly prohibited to the States are those 
mentioned in Section 10 of Article I, and in the Thir- 
teenth, Fourteenth, and Fifteenth Amendments. The 
implied prohibitions are those arising from the su- 
premacy of national laws. This subject will be fur- 
ther touched upon in the next chapter which will deal 
with the mutual independence of the federal and state 
governments. 

press afforded a clear implication that a right to prescribe proper 
regulations concerning it, was intended to be vested in the Na- 
tional Government." 



153 



CHAPTER IX 

COERCION OF STATE ACTION 

The right of the United States Government to pre- 
vent, by force if necessary, the individual States from 
in any way interfering with the execution of federal 
laws within their borders has already been discussed. 
The somewhat different question as to the powers pos- 
sessed by the General Government to compel, in a 
positive way, the performance by the States of duties 
laid upon them by the federal Constitution has now 
to be considered. 

Generally speaking, it is a matter for the United 
States or for an individual State itself to determine 
whether or not it will exercise a power that is granted 
or reserved to it. Thus, for instance. Congress has 
never fully exercised the legislative powers granted it, 
and, on the other hand, no one of the States has ever 
employed all the powers reserved to it. Indeed, with- 
out exception, all the States have by their own con- 
stitutions removed from the competence of their 
legislatures many powers that, so far as the Federal 
Constitution is concerned, they might properly em- 
ploy. But when from rights we turn to duties the 
question is a different one. 

154 



COERCION OF STATE ACTION 



A considerable number of duties are specifically, or 
by implication, laid upon the United States by the 
Constitution. Thus, in general, it may be said that 
Congress has imposed upon it the obligation of pass- 
ing such laws as are necessary to make effective the 
various provisions of the Constitution. For example, 
the grant of judicial power to the United States would 
be valueless without congressional action determining 
the constitution of the Supreme Court, creating a sys- 
tem of inferior federal courts and fixing their several 
jurisdictions, and executive action in the appoint- 
ment of the necessary justices and other judicial offi- 
cers. So also the various executive departments of 
the Federal Government owe their creation and main- 
tenance to legislative and executive action. Again, 
the creation of new States out of territories requires 
the affirmative action of the legislative branch of the 
Federal Government. As to all these, and many other 
duties that are laid upon the different departments 
of the Federal Government, there can be no question 
but that however great a moral obligation there may 
be for their exercise, there is no legal means of com- 
pelling their performance. Should Congress neglect 
to create inferior federal tribunals, or should it arbi- 
trarily refuse to admit as a State a territory that has 
advanced far beyond the stage that would justly en- 
title it to statehood, there would be no legal means of 
enforcing action. Here, as in many cases of possible 
abuse of power, the compelling or restraining forces 
that have to be depended upon are public opinion, 
the suffrage, and, in some few instances, impeachment. 

If, then, this be the condition of affairs as regards 
155 



THE AMERICAN CONSTITUTIONAL SYSTEM 

the duties laid by the Constitution upon the several 
departments of government of the United States, what 
is the situation as regards those duties, the perform- 
ance of which is expressly or impliedly imposed by 
the Constitution upon the peoples and governments 
of the individual States? 

First, let us see what are some of these affirmative 
duties. The more important of them are the fol- 
lowing : 

First, the Constitution declares that: "No person 
held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence 
of any law or regulation therein, be discharged from 
such service or labor, but shall be delivered up on 
claim of the party to whom such service or labor may 
He due." This clause, of course, refers to fugitive 
slaves, and therefore has been without significance 
since the adoption of the Thirteenth Amendment. 
The history of the manner in which its enforcement 
was attempted and the judicial decisions occasioned 
thereby, however, throw considerable light upon the 
general question which we are now considering of the 
power of the United States to compel the affirmative 
performance of duties by the States. 

Secondly, the Constitution declares that: "A person 
charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in an- 
other State, shall on demand of the executive authority 
of the State from which he fled, be delivered up to be 
removed to the State having jurisdiction of the 
crime. ' ' 

Thirdly, the States have laid upon them the duty of 
156 



COERCION OF STATE ACTION 



playing their constitutional part in the establishment 
and maintenance of the Federal Government by se- 
lecting Representatives and Senators for Congress, 
and participating in the election of the President. 

Fourthly, by federal law there is given in certain 
cases a right of appeal to the Supreme Court of the 
United States from the highest courts of the States. 
In other cases, also, there is granted to the defendants 
a right of removal to the superior federal courts of 
suits brought against them in the state courts. Such 
state courts have therefore laid upon them certain 
duties in connection with the perfecting of such ap- 
peals, as, for example, the preparation and certify- 
ing of the "records" of the cases in which an appeal 
or removal is sought. 

Fifthly, the Constitution provides that no State 
shall pass any law impairing the obligation of con- 
tracts. Stated positively, this of course means that all 
individuals shall have the right to obtain enforcement 
of all legal agreements. 

By briefly considering, in each of the above classes 
of duties, the power of the Federal Government to 
compel their performance by the States, and by com- 
bining the conclusions reached, we shall be able to 
obtain a satisfactory knowledge of the relations that 
exist between the Union and its member States in 
matters of this sort. 

First, then, as to the surrender of fugitive slaves. 

With reference both to fugitive slaves and fugitives 
from justice, the fact may be mentioned that, accord- 
ing to United States Constitutional Law, there would 
have been, in the absence of the express provision of 

157 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Article IV, Section 2, no legal means whatever where- 
by one State might obtain from another the surrender 
of fugitives from itself, should that other State refuse 
its consent and assistance. This result would follow 
from the general principle that, except in so far as the 
federal Constitution expressly provides otherwise, the 
member States of the Union occupy a position, as re- 
gards one another, exactly similar to that in which 
sovereign, independent States stand toward one an- 
other. The laws and judiciary of the one have no op- 
eration, ex proprio vigore, within the territorial limits 
of any one of the other States, and its officers are like- 
w^ise destitute of authority outside of its own borders. 
In the case of Prigg v. Pennsylvania (16 Pet, 539) 
the law relative to the surrender of fugitive slaves 
was first authoritatively laid down. In that case, 
Justice Story, in rendering the opinion of the Court, 
referred to the fact that "Historically, . . . the 
object of this [fugitive slave] clause was to secure 
to the citizens of the slave-holding States the complete 
right and title of ownership in their slaves, as prop- 
erty, in every State in the Union into which they 
might escape from the State where they were held in 
servitude." This, then, he says, being a right guar- 
anteed to them by the Constitution, it is the duty of 
the Federal Government to see that they obtain it. 
But, he continues, if it be left to the individual States, 
m.any of which are opposed to slavery, to enact and 
enforce the laws necessary to make the right effec- 
tive, it is almost certain that they will not do so, and 
thus the people of the slave-owning States will be de- 
prived not only of their guaranteed rights, but of one 

158 



COERCION OF STATE ACTION 



of those very rights, the promise of which was an es- 
sential inducement to them to come into the Union. 
Therefore, said Story, speaking for the majority of 
the Court, a federal law is just and proper, for, as he 
says, the language of any clause should be interpreted 
*'in such a manner, as, consistently with the words, 
shall fully and completely effectuate the whole rights 
of it." He then continues: "The clause is found in 
the national Constitution, and not in that of any 
State. It does not point out any state functionaries, 
or any state action to carry its provisions into effect. 
The States cannot, therefore, be compelled to enforce 
them ; and it might well be deemed an unconstitutional 
exercise of the power of interpretation, to insist that 
the States are bound to provide means to carry into 
effect the duties of the National Government nowhere 
delegated or intrusted to them by the Constitution." 

It will be observed that by this decision the Supreme 
Court declared that as a matter of fact when the Con- 
stitution declared that persons held to servitude 
in one State escaping into another should be delivered 
up, the affirmative legal duty of seeing that this was 
done was laid upon the National Government and not 
upon the States at all. Upon them was laid only the 
duty, and that but an implied one, of not hindering 
the performance by the Federal Government of its 
duty. 

A fact to be noted regarding the federal law, the 
constitutionality of which was asserted in this ease, 
is that it provided that fugitive slaves, when arrested 
by their owners or their agents, should be taken before 
a federal court, or a state magistrate, and upon proof, 

159 



THE AMERICAN CONSTITUTIONAL SYSTEM 

etc., taken back to the States from which they had 
fled. In the arguments addressed to the Court, and in 
the opinions rendered by all its justices, except 
McLean, it was conceded that that provision of the 
federal statute which declared that fugitive slaves 
might be taken before state magistrates, had not, and 
could not constitutionally be made to have the effect 
of imposing a duty upon such state officials which 
might be enforced should they refuse its performance. 
In his opinion, McLean declared: "It seems to be 
taken as a conceded point in the argument that Con- 
gress had no power to impose duties on state officers, as 
provided in the above act. As a general principle this 
is true. . . . Congress can no more regulate the juris- 
diction of the state tribunals than a State can define 
the judicial power of the Union. The officers of each 
government are responsible only to the respective 
authorities under which they are commissioned." 
"But," McLean went on to ask, "do not the clauses 
in the Constitution in regard to fugitives from 
labor and from justice give Congress a power over 
state officers, on these subjects? " Answering this 
question, he asserted as his own opinion that where 
the Constitution imposes a positive duty on a State, 
or its officers, to surrender fugitives, Congress may 
prescribe the mode of proof and the duty of the state 
officers. But, even though taking this position, 
which it may be said, parenthetically, the Supreme 
Court has never upheld, McLean himself said that 
should this power of Congress be resisted by a State 
there would be no means of coercing it. 

The case of Prigg v. Pennsylvania was decided in 
160 



COERCION OF STATE ACTION 



1842. Besides upholding the constitutionality of the 
federal law, it denied the power of the States to pass 
any laws regulating the rendition of fugitive slaves, 
even though intended in good faith to aid in the cap- 
ture and surrender to their proper masters of these 
pieces of property. In 1843 Massachusetts and Ver- 
mont passed laws which expressly prohibited their re- 
spective officers from performing any of the duties 
required of them by the federal fugitive slave law; 
and in 1847-48 Pennsylvania and Rhode Island fol- 
lowed suit. In 1850 Congress enacted a new fugitive 
■slave law the execution of which was placed wholly 
within the hands of federal officials. Thereupon a 
considerable number of the Northern and Western 
States passed laws which not only denied the use of 
their jails, forbade the judges to issue writs or give 
any assistance whatever to claimants of fugitive slaves, 
but made provision for counsel for apprehended ne- 
groes, declared them entitled to the writ of habeas 
corpus, required a jury to establish their identity, and 
imposed heavy penalties upon all persons who should 
be shown to have forcibly seized or falsely laid claim 
to negroes as their slaves. Vermont indeed had, and 
kept, upon her statute book a law that was, in terms, 
directly nullifieatory of the federal act, declaring that 
any person who might have been held as a slave, and 
who should come into the State, should be free. 

From the surrender of fugitive slaves we turn now 
to the subject of extradition of fugitives from justice. 

The same article of the Constitution that provides 
for the surrender of fugitive slaves provides also, as 
we have seen, that "a person charged in any State 
11 161 



THE AMERICAN CONSTITUTIONAL SYSTEM 

with treason, felony, or other crime, who shall flee 
from justice, and be found in another State, shall on 
demand of the executive authority of the State from 
which he fled, be delivered up, to be removed to the 
State having jurisdiction of the crime." The legisla- 
tive and judicial history of this clause has, however, 
been quite different from that of the fugitive slave 
clause. 

In the case of Kentucky v. Dennison (24 How., 66), 
decided by the Supreme Court in 1860, the whole sub- 
ject of the respective powers and duties of the state 
and federal governments in respect to this matter of 
extradition of criminals, came up for adjudication. 
Congress had passed a law declaring that, upon re- 
quest from the State from which the fugitive has 
escaped, ''it shall be the duty of the executive au- 
thority of the State" to cause the fugitive to be seized 
and delivered to the agent of the demanding State. 
Dennison, the governor of Ohio, refused the request of 
the Commonwealth of Kentucky to surrender a fugi- 
tive from her borders. Thereupon a mandamus was 
asked from the federal court to compel him to do so. 
This writ the Supreme Court refused to issue, the 
argument of Taney, who prepared the opinion of the 
Court, being as follows: The duty of providing by 
law the regulations necessary for carrying into effect 
this right to extradition, he said, manifestly belonged 
to Congress. Furthermore, he declared, the duty 
that was laid upon the governors of the States by the 
Constitution, and by the law that Congress had 
passed, was a mere ministerial duty, and, therefore, 
one the performance of which might ordinarily be 

162 



I 



COERCION OF STATE ACTION 



compelled by the courts. Thirdly, it was certain that 
the words ''it shall be the duty," when employed in 
ordinary acts of legislation, imply an assertion of the 
right to command and coerce obedience. ''But," said 
Taney, "looking to the subject-matter of this law, and 
the relations which the United States and the several 
States bear to each other, the Court is of opinion the 
words 'it shall be the duty' were not used as manda- 
tory and compulsory, but as declaratory of the moral 
duty which this compact created, when Congress had 
provided the mode of carrying it into execution. The 
act does not provide any means to compel the execu- 
tion of this duty, nor inflict any punishment for 
neglect or refusal on the part of the executive of the 
State ; nor is there any clause or provision in the Con- 
stitution which arms the government of the United 
States with this potver. Indeed, such a power would 
place every State under the control and dominion of 
the General Government, even in the administration 
of its internal concerns and reserved rights. And we 
think it clear that the Federal Government, under the 
Constitution, has no power to impose on a state officer, 
as such, any duty whatever, and compel him to per- 
form it. . . . It is true that Congress may authorize 
a particular state officer to perform a particular duty ; 
but if he declines to do so, it does not follow that he 
may be coerced or punished for his refusal." 

This judgment of the Court in Kentucky v. Den- 
nison brings into very clear light the completeness 
with which the federal and state governments, when 
acting within their respective constitutional spheres, 
are kept independent of each other; for here was a 

163 



THE AMERICAN CONSTITUTIONAL SYSTEM 

case in which an express duty had been laid by the 
federal Constitution itself upon the States, and yet 
the General Government was held powerless to compel 
its performance. 

As regards, now, the election of Representatives, 
Senators, and Presidential Electors by the States, it 
may be said that the States never have actually re- 
fused to act. Their power to refuse, and the impo- 
tency of the Federal Government in such a case to 
compel them to act, has, however, been several times 
asserted, and, so far as the writer knows, has never 
been denied. Indeed it would be very difficult to sug- 
gest any possible legal means by which such action 
could be affirmatively compelled. In the case of 
Cohens v. Virginia, to which reference has already 
been made in connection with the matter of appeals 
from state courts Lo the United States Supreme Court, 
Barbour, arguing in behalf of the position which had 
been taken by Virginia, declared: "Whenever the 
States shall be determined to destroy the Federal Gov- 
ernment, they will not find it necessary to act, and 
to act in violation of the Constitution, They can 
quietly accomplish the purpose by not acting. Upon 
the state legislatures it depends to appoint the Sena- 
tors and Presidential Electors, or to provide for their 
election. Let them merely not act in these particulars, 
the exeq.utive department and part of the legislature 
ceases to exist, and the Federal Government thus per- 
ishes by a sin of omission not of commission." To 
this position Webster alluded in his speech in reply 
to Calhoun, and endeavored to minimize its impor- 
tance from the States' Rights standpoint. ''I hear it 

164 



I 

COERCION OF STATE ACTION 



often suggested," he said, ''that the States, by refus- 
ing to appoint Senators and Electors, might bring this 
government to an end. Perhaps this is true ; but the 
same may be said of the state governments themselves. 
Suppose the legislature of a State, having the power 
to appoint the governor and the judges, should omit 
that duty, would not the state government remain un- 
organized? No doubt, all elective governments may 
be broken up by a general abandonment on the part 
of those intrusted with political powers, of their ap- 
propriate duties." Moreover, as a matter of fact, as 
AVebster went on to show, in a certain very important 
sense the federal Constitution relies, for the main- 
tenance of the government which it establishes, upon 
the plighted faith not of the States, as States, but 
upon the several oaths of their individual citizens, in 
that all members of a state legislature are obliged, as 
a condition precedent to their taking their seats, to 
swear to support the federal Constitution, and from 
the obligation of this oath no state power can dis- 
charge them. Thus, said Webster, "no member of a 
state legislature can refuse to proceed at the proper 
time to elect Senators to Congress, or to provide for 
the choice of Electors of President and Vice-President, 
any more than the members of this body [Senate] 
can refuse, when the appointed day arrives, to meet 
the members of the other House, to count the votes for 
those officers, and ascertain who are chosen. In both 
cases, the duty binds, and with equal strength, the 
conscience of the individual member, and it is im- 
posed on all by an oath in the very same words. Let 
it then never be said, Sir, that it is a matter of discre- 

165 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tion with the States whether they will continue the 
government, or break it up by refusing to appoint 
Senators and Electors. They have no discretion in the 
matter. The members of the legislatures cannot avoid 
doing either, so often as the time arrives, without a 
direct violation of their duty and their oaths ; such a 
violation as would break up any other government." 

The correctness of the reasoning of Webster may be 
granted, and yet the fact remains that however great 
a moral obligation there may be upon the individual 
members of the several state governments to take such 
action as is necessary to equip the Federal Govern- 
ment with the officials necessary for its operation, 
there exist no legal means, by an issue of mandamus 
or otherwise, to compel such action when refused. 

But though the United States government is impo- 
tent to enforce action in the matters of which we have 
been speaking, the Constitution gives it the power to 
determine the manner in which such action shall be 
taken, if taken at all. Article I, Section 4, of the Con- 
stitution provides that, "The times, places, and man- 
ner of holding elections for Senators and Represen- 
tatives, shall be prescribed in each State by the leg- 
islature thereof; but the Congress may at any time by 
law make or alter such regulations except as to the 
places of choosing Senators." 

Congress has exercised the authority granted it by 
this clause to but a comparatively slight extent; and, 
even when exercised, its power has been employed not 
so much by way of establishing positive regulations of 
its own, as by the appointment of marshals and su- 
pervisors of elections to see to it that the state laws are 

166 



COERCION OF STATE ACTION 



applied with fairness to all qualified voters. This 
right of oversight, has, however, been resisted by some 
of the States upon the ground that, though the United 
States may establish regulations of its own, appoint 
officials to execute them, and compel the officials of the 
State as well as private citizens to conform to them, it 
has no right or power to control state officials in the 
execution of the laws enacted by their own States, even 
though those laws relate to the election of members of 
the National Legislature. 

This controversy reached a judicial settlement in the 
case of Ex parte Siebold (100 U. S., 371), decided in 
1879. This suit arose out of ""he arrest of certain state- 
appointed judges of elections who were charged with 
interfering with and resisting supervisors and deputy 
marshals holding appointment from the Federal 
Government. In behalf of the defendants it was 
maintained that the federal officials had been without 
constitutional authority, and, therefore, that the resis- 
tance offered them was not a legal offense. In deciding 
the case, the Court said: "It is objected that Congress 
has no power to enforce state laws or to punish state 
officers, and especially has no power to punish them 
for violating the laws of their own State. As a 
general proposition, this is undoubtedly true; but 
when, in the performance of their functions, state 
officers are called upon to fulfil duties which they owe 
to the United States as well as to the State, has the 
former no means of compelling such fulfilment? Yet 
that is the case here. It is the duty of the States to 
elect Representatives to Congress. The due and fair 
election of these Representatives is of vital importance 

167 



THE AMERICAN CONSTITUTIONAL SYSTEM 

to the United States. . . . The objection that the 
laws and regulations, the violation of which is made 
punishable by the Acts of Congress, are state laws and 
have not been adopted by Congress, is no sufficient 
answer to the power of Congress to impose punish- 
ment. . . . The state laws which Congress sees no 
occasion to alter, but which it allows to stand, are in 
effect adopted by Congress. ' ' 

By the recognition of this last implication, the whole 
difficulty of the case was of course removed, for if 
there had been a violation of what were in fact federal 
laws, of course the federal legislature had the power of 
imposing penalties for their violation, and the federal 
courts had the power of applying tbem.^ In Ex parte 
Yarborough (110 U. S., 651), the doctrine declared in 
Siebold's case was reaffirmed, the Court saying, ''If 
this government is anything more than a mere aggre- 
gation of delegated agents of other States and gov- 
ernments, each of which is superior to the General 
Government, it must have the power to protect the 
elections from violence and corruption." 

1 In a strong dissenting opinion Justice Field took the ground 
that in granting to the Federal Government the authority to en- 
act laws regulating the elections of Senators and Representa- 
tives, the intention of the framers of the Constitution had been 
simply to authorize the General Government to legislate in case 
the state government refused to take any steps whatever. As 
he said : " The act was designed simply to give to the General 
Government the means of its preservation against a possible dis- 
solution from the hostility of the States to the election of Repre- 
sentatives, or from their neglect to provide suitable means for 
holding such elections." As evidence that this was the inten- 
tion, Madison's remarks in the Constitutional Convention and 
Hamilton's in the "Federalist" were cited. 

^ 168 



COERCION OF STATE ACTION 



We turn now to the subject of the power of the 
United States to compel the performance by the States 
of such duties as are necessarily laid upon them in 
connection with the perfecting of appeals from their 
courts to the Supreme Court of the United States, and 
with the removal to federal tribunals of certain classes 
of cases originally brought before their own judges. 
As regards both of these matters it may be said that it 
would appear that the General Government is power- 
less to compel action on the part of the state officials, 
unless it be held that the preparation of a record is a 
purely ministerial act, that is, one involving the exer- 
cise of no discretion.^ As a matter of fact, all that has 
been done in the past when the state tribunals have 
refused to do their duty, that is, to prepare and cer- 
tify the record of the case that is to be appealed or 
removed, has been for the Federal Government to 
proceed as though the state courts had done what they 
should, take jurisdiction, and enforce the judgments, 
notwithstanding the remonstrances or resistance that 
the States have made. Thus when the Supreme Court 
of Wisconsin refused to prepare and send to the fed- 
eral Supreme Court the record of the case of Ableman 
V. Booth, the federal Supreme Court, being notified of 
this refusal, contented itself with an uncertified record 
which it ordered to be treated as though it had been 
prepared and sent to it in due form by the state court. 

In the matter of removal of cases from state to fed- 
eral courts the principles and practice are substanti- 
ally similar. Thus, as stated by the late B. R. Curtis 
in his excellent manual, ''The Jurisdiction of the 
1 See post, p. 178. 
169 



THE AMERICAN CONSTITUTIONAL SYSTEM 

United States Courts," "The theory is that if a proper 
bond, and a petition stating a proper case for re- 
moval, are filed in the state court, thereupon the 
case is removed, although the state courts may refuse 
to make an order for removal, and may proceed with 
the cause (Marshall v. Holmes, 141 U. S., 589). In 
such a contingency, the defendant's remedy is a writ 
of error to the United States Supreme Court after 
a final decision has been made in the highest court of 
the state to which the suit can be carried. The defen- 
dant may defend the suit in the state court, or not, 
as he chooses; and he does not, by defending the suit 
in the state court, forfeit his right to remove it. Thus 
it might happen that both the state court and the 
[federal] Circuit Court should be trying the same 
suit at the same time, although 'comity' would in 
most cases prevent this result. Neither court has 
power to stop proceedings in the other. ' ' ^ 

States cannot put restrictions upon the removal of 
cases from their courts to federal tribunals any more 
than they can prevent it. This was declared in a case 
arising under a statute of the State of Wisconsin 
which provided that insurance companies of other 
States desiring to do business within its limits should 
sign a written agreement that they would not remove 
to the federal courts any suit brought against them 
in the State's courts. One of these companies, having 

1 Pp. 197-198, ed. 1896. Curtis adds : "But the Circuit [federal] 
Court can issue a writ of certiorari commanding the state court 
to send a copy of the record in any cause to the Circuit Court ; 
and if the clerk should refuse to do so, he becomes liable to fine 
and imprisonment. So far as the writer is aware there has 
been no case in which this penalty has needed application. 

170 



COERCION OF STATE ACTION 



removed a case to the federal courts notwithstanding 
its agreement not to do so, the Wisconsin courts, ig- 
noring the fact of its removal, proceeded with the 
case and rendered judgment against the company. 
The Supreme Court of the United States, however, 
upon appeal to it, declared the judgment void upon 
the ground that the agreement itself not to remove 
w^as illegal, as no one could bind himself in advance 
not to exercise a right guaranteed to him by the Con- 
stitution any more than he could barter away his life 
or freedom (Home Insurance Co. v. Morse, 20 Wall., 
445). When, however, in a later case, the Supreme 
Court of the United States was asked to issue an in- 
junction forbidding the Secretary of State of Wiscon- 
sin to revoke the license of an insurance company that 
had violated its agreement not to remove, that court 
held that it could not thus control the action of a state 
official, even though his action were apparently based 
upon an improper ground. The Court said: ''The 
argument that the revocation in question is made for 
an unconstitutional reason cannot be sustained. The 
suggestion confounds an act with an emotion or a 
mental proceeding which is not the subject of inquiry 
in determining the validity of a statute" (Doyle v. 
Continental Insurance Co., 94 U. S., 535). In other 
words, it was held that the right both of granting and 
of revoking a license to a foreign corporation to do 
business within a State belonging to the proper officer 
of that State, it was not within the competence of a 
federal court to determine whether that power was 
exercised for a good or bad reason or for no reason at 
all. But when in a still later case there was drawn 

171 



THE AMERICAN CONSTITUTIONAL SYSTEM 

into question the operation of a statute of Iowa which 
declared that upon the violation by a foreign insur- 
ance company of its agreement not to remove a case 
to the federal courts, its license should thereby become 
void, the federal Supreme Court held that the viola- 
tion of an illegal agreement could not of itself operate 
to work a revocation of the company's license. If re- 
voked at all it would have to be by the act of a com- 
petent state official, and not, ipso facto, by the exercise 
of a constitutional right (Barron v. Burnside, 121 
U.S., 186). 

In the various phases of the suability of the States 
of the American Union, the extent of their amena- 
bility to compulsory processes issued by the Federal 
Government has been very clearly determined. 

The Eleventh Amendment declares that ''The ju- 
dicial power of the United States shall not be con- 
strued to extend to any suit in law or equity, com- 
menced or prosecuted against one of the United Stages 
by citizens of another State, or by citizens or subjects 
of any foreign State." This leaves it still open to the 
federal courts to entertain suits brought by one State 
against another ; and, under the exercise of its original 
jurisdiction, a number of such suits have been adju- 
dicated. Most of these have been in reference to suits 
regarding boundaries. There is, however, now pend- 
ing a suit brought by the State of South Dakota 
against the State of North Carolina to compel the de- 
fendant State to pay the interest and principal of 
certain of its bonds owned by the plaintiff. This case 
differs from that of New Hampshire v. Louisiana 
^108 U. S., 76), in which suit was brought by the 

172 



COERCION OF STATE ACTION 



plaintiff State as trustee for some of its citizens, and 
in which the Supreme Court held that, New Hamp- 
shire having no real interest of its own, the suit was 
virtually one against a State by citizens of another 
State, and, as such, barred by the Eleventh Amend- 
ment.^ Though not expressly disqualified by the 
Eleventh Amendment from assuming jurisdiction in 
suits instituted against a State by one of its own citi- 
zens, the Supreme Court has declared, in Hans v. 
Louisiana (134 U. S., 1), that, by implication from the 
political character of the States, as well as from the 
known sentiments leading up to the Eleventh Amend- 
ment, they are not subject to such a judicial process. 
At the same time, however, that the Court declared 
this conclusion as to the non-suability of a State either 
by its own citizens or citizens of other States, it took 
the precaution tx) say: ''To avoid misapprehension it 
may be proper to add that, although the obligations of 
a State rest for their performance upon its honor and 
good faith, and cannot be made the subject of judicial 
cognizance unless the State consents to be sued, or 
comes itself into court; yet, where property or rights 
are enjoyed under a grant or contract made by a 
State, they cannot wantonly be invaded. Whilst the 
State cannot be compelled by suit to perform its con- 
tracts, any attempt on its part to violate property or 
rights acquired under the contracts, may be judicially 
resisted; and a law impairing the obligation of con- 

1 Since this was written this case has been decided, the court 
holding the suit a proper one and granting judgment against the 
defendant State (South Dakota v. North Carolina, 24 Supreme 
Court Eeporter, 269). 

173 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tracts under which such property or rights are held 
is void and powerless to affect their enjoyment." 

Acting under the right thus declared of preventing 
a State, or rather the officials of a State, from acting 
under laws unconstitutional, either because impairing 
the obligation of contracts, or taking property without 
due process of law (forbidden by the Fourteenth 
Amendment), the federal courts, while declaring them- 
selves unable to secure to private individuals an en- 
forcement of their claims against States, have never- 
theless been able to extend their protecting power to 
prevent the States from taking action upon their part 
to enforce against individuals and against its federal 
officials claims not supported by valid laws. 

The following are instances illustrating this. In 
the case of Osborn v. Bank of United States (9 Wh., 
738) an injunction was asked to restrain the Auditor 
of the State of Ohio from covering into the state 
treasury certain funds of the federal bank, taken pos- 
session of by him in payment of a tax levied against 
the bank by the State. The direct interest of the 
State in the suit was thus apparent and admitted, but 
the Supreme Court held that the suit was in fact 
against its official Osborn, and that, inasmuch as he 
was attempting to proceed under authority of an al- 
leged law that was in fact unconstitutional and void 
(because an interference with a federal instrument of 
government) , he could not justify himself and an in- 
junction would therefore lie. 

In United States v. Lee (106 U. S., 196) the 
principle thus applied to an official of one of the 
States was enforced against the agents of the Federal 

174 J 

i 



COERCION OF STATE ACTION 



Government itself. Acting under orders of the Presi- 
dent, which he had no legal authority to give, the 
Arlington estate of General Lee had been taken pos- 
session of b}^ agents of the National Government. 
Upon suit in ejectment being brought by the heirs of 
Lee against those federal officials who were in posses- 
sion of the property, the United States, through its 
Attorney-General, made appearance in the case and 
set up the fact that such property was claimed by 
itself, and that the defendants held it as its own 
agents. Notwithstanding this, and notwithstanding 
also the fact, as was pointed out in the minority opin- 
ion, that a government was able to hold property only 
through its agents, the Supreme Court gave judgment 
for the plaintiffs, holding that no official, federal or 
state, might justify himself by appealing to any law 
or order that was not constitutional.^ 

In the case of Louisiana v. Jumel (107 U. S., 711) 
the question was raised as to the authority of the Su- 
preme Court to compel a State to pay the holders of 
certain bonds their face value and interest out of a 
fund then in the state treasury. In declining to issue 
the necessary order, the Court, while admitting the 
contractual obligation on the part of the State, said: 
''The relief asked will require the officers against 
whom the process goes to act contrary to the positive 
orders of the supreme political power of the State. 
... In the Arlington case it was held that the officers 
of the United States, holding in their official capacity 
the possession of lands to which the United States had 

1 In Tindal v. Wesley, 167 U. S., 204, the same rule 
was applied to the States. 

175 



THE AMERICAN CONSTITUTIONAL SYSTEM 

no title, could be required to surrender their posses- 
sion to the rightful owner, even though the United 
States were not a party to the judgment under which 
the eviction was to be had. Here, however, the money 
in question is lawfully the property of the State. It 
is in the manual possession of an officer of the State. 
The bondholders never owned it. The most that they 
can claim is that the State ought to use it to pay their 
coupons, but, until so used, it is in no sense theirs." 
Furthermore, the Court went on to say : ' ' The remedy 
sought, in order to be complete, would require the 
Court to assume all the executive authority of the 
State, so far as it related to the enforcement of this 
law, and to supervise the conduct of all persons 
charged with any official duty in respect to the levy, 
collection, and disbursement of the tax in question 
until the bonds, principal, and interest were paid in 
full, and that, too, in a proceeding to which the State, 
as a State, was not and could not be made a party." 
Eeferring to Osborn v. Bank of United States, the 
Court said: "No one pretended [in that case] that if 
the money had actually been paid into the treasury, 
and had become mixed with the other money there, it 
could have been got back from the State by a suit 
against the officers. They would have been individu- 
ally liable for the unlawful seizure and conversion, 
but the recovery would be against them individually 
for the wrongs they had personally done, and could 
have no effect on the money which was held by the 
State." 

In the Virginia Coupon Cases every conceivable 
176 



COERCION OF STATE ACTION 



phase of the subject was fought out by the State and 
its creditors. Thus in Antoni v. Greenhow (107 U. S., 
769) the Supreme Court refused a mandamus to com- 
pel a state officer to receive in payment of taxes cer- 
tain coupons which the State had promised so to re- 
ceive. But when, upon the coupons being tendered 
and refused, the state officials proceeded to attempt to 
collect the taxes for the payment of which the coupons 
had been tendered, the Court, in Poindexter v. Green- 
how (114 U. S., 270), held that officer subject to a 
suit for trespass, for acting under a state law that was 
unconstitutional because in violation of the contract 
which the State had made. The immunity of the 
Eleventh Amendment, said the Court, ''is undoubt- 
edly a part of the Constitution of equal authority with 
every other, but no greater, and to be construed and 
applied in harmony with all the provisions of that 
instrument. That immunity, however, does not ex- 
empt the State from the operation of the constitft- 
tional provision that no State shall pass any law im- 
pairing the obligation of contracts; for it has long 
been settled that contracts between a State and an in- 
dividual are as fully protected by the Constitution as 
contracts between two individuals. It is true that no 
remedy for a breach of the contract by a State, by 
way of damages as compensation, or by means of pro- 
cess to compel its performance, is open, under the 
Constitution, in the Courts of the United States, by a 
direct suit against the State itself on the part of the 
injured party, being a citizen of another State or a 
citizen or subject of a foreign State. But it is equally 
12 177 



THE AMERICAN CONSTITUTIONAL SYSTEM 

true that whenever, in a controversy between parties 
to a suit, of which these courts have jurisdiction, the 
question arises upon the validity of a law by a State 
impairing the obligation of its contract, the jurisdic- 
tion is not thereby ousted, but must be exercised with 
whatever legal consequences to the rights of the liti- 
gants may be the result of the determination." 

There is but one exception to the general principle 
that the federal courts will not assume the right affir- 
matively to order state officials to perform official acts, 
and this is when the acts in question are commanded 
by valid laws and are of a purely ministerial char- 
acter; that is, acts involving the exercise of no judg- 
ment or discretion. Thus in The Board of Liquidation 
V. McComb (92 U. S., 531) the Supreme Court said: 
"It has been well settled that when a plain, public 
duty requiring no exercise of discretion is to be per- 
formed, and performance is refused, any person who 
will sustain a personal injury by such refusal may 
have a mandamus to compel its performance; and 
when such duty is threatened to be violated by some 
positive official act, any person who will sustain per- 
sonal injury thereby, for which adequate compensa- 
tion cannot be had at law, may have an injunction to 
prevent it. . . . In either case, if the officers plead 
the authority of an unconstitutional law for the non- 
performance or the violation of his duty, it will not 
prevent the issuing of the writ. ' ' This principle, thus 
stated, the federal courts have a number of times ap- 
plied to state officials. Thus in the case of Hartman 
V. Greenhow (102 IT. S., 672) the Supreme Court en- 
forced a contract of the State of Virginia by com- 

178 



COERCION OF STATE ACTION 



pelling one of its officers to receive coupons of certain 
of its bonds in payment of taxes, although there then 
existed upon the statute books of the State, a law, 
which the Supreme Court held unconstitutional, for- 
bidding their receipt. 



179 



CHAPTER X 

FEDERAL SUPERVISION OF STATE DUTIES 



L/ 



In the foregoing pages there has been set forth in 
some detail the principles which govern the question 
of the extent to which the Federal Government may 
compel the performance by the governments of the 
individual States of duties constitutionally laid upon 
them. We turn now to a topic which, while closely 
related to the one of which w^e have been speaking, is 
yet distinct from it. This topic is the extent of the 
legal power of the National Government to examine 
state laws and supervise their execution with a view to 
seeing that they do not infringe in any way upon the 
rights secured to individuals by the federal Constitu- 
tion and laws. The subject now to be considered is 
thus the negative power of the United States Govern- 
ment to prevent the violation of federal rights by the 
States, and not the positive power, the extent of 
which we have just examined, of compelling the per- 
formance by the States of their constitutional duties. 
Prior to the adoption of the Fourteenth Amendment 
in 1868 the laws of the individual States, so long as 
they related to subjects over which the States had 
the right of legislation, were not subject to examina- 
tion in federal courts with a view to ascertaining 

180 



FEDERAL SUPERVISION OF STATE DUTIES 

whether they deprived any one of life, liberty, or 
property without due process of law, or denied to any 
one equal legal protection. The first nine amendments 
to the federal Constitution which enumerated the fun- 
damental rights of individuals that might not be vio- 
lated were, from the beginning, construed to limit not 
the States but the Federal Government only. Until, 
therefore, the Fourteenth Amendment was adopted 
there was, so far as the federal Constitution and laws 
were concerned, nothing to prevent the several States 
from enacting laws which denied to their own citizens 
the equal protection of the laws, or ''deprived them of 
life, liberty, and property without due process of law. 
The only limitation laid upon the States by the Con- 
stitution was that they should enact no bills of at- 
tainder, no ex post facto laws, or laws impairing the 
obligation of contracts. As a matter of fact, indeed, 
all of the States had by their own constitutions taken 
from their legislatures the power to enact laws upon 
certain specified topics, and forbidden them to violate 
certain declared principles of justice and right. But 
the adoption of these constitutional limitations was 
purely voluntary upon their part. 

In 1868, however, as one of the results of the Civil 
War, the Fourteenth Amendment was adopted, which, 
after declaring that "all persons born or naturalized 
in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the 
State wherein they reside," goes on to provide that 
''no State shall make or enforce any law which shall 
abridge the privileges and immunities of citizens of 
the United States; nor shall any State deprive any 

181 



THE AMERICAN CONSTITUTIONAL SYSTEM 

person of life, liberty, or property without due process 
of law ; nor deny to any person within its jurisdiction 
the equal protection of the laws." 

For a number of years after the adoption of this 
Amendment it was by no means certain but that the 
effect of the above-cited provisions would be to endow 
the United States Government with additional powers 
so great as fundamentally to alter the very nature of 
the Union itself. There can be no question but that 
the clauses of the Amendment that we have quoted 
were easily susceptible of an interpretation that would 
have given them this result, and that, at the time they 
were framed and adopted by Congress and ratified by 
the necessary number of state legislatures, there were 
very many who believed that they would, and desired 
that they should, work this revolutionary change in 
the American Constitutional system.^ Fortunately, 
however, as all must now believe, the Supreme Court 
was able and was led to give to these words a construc- 
tion that robbed them of such an effect. This it did 
in the following manner. 

In 1875 Congress passed a so-called Civil Rights 
Act, fixing generally the penalties to which state offi- 
cials should be subject for depriving any citizen of the 
United States of any of the rights secured him by the 
Thirteenth and Fourteenth Amendments, and declar- 
ing specifically that negroes should receive the same 

^ See especially the debates attendant upon the passage of the 
Civil Rights Bill of 1866, the doubts as to the constitutionality 
of which led to the adoption of the Fourteenth Amendment. 
See also the dissenting opinion of Justice Field in the Civil 
Rights Cases, 109 U. S., 3, in which Justices Swayne, Bradley, 
and Chief Justice Chase concurred. 

182 



FEDERAL SUPERVISION OF STATE DUTIES 

treatment at public inns, hotels, railways, theaters, 
etc., as that enjoyed by white persons. The im- 
portance of this act lay in the fact that by passing it 
Congress indicated that it interpreted the Fourteenth 
Amendment as giving it power not simply to punish 
persons who should deprive others of any of the 
rights mentioned in that Amendment, but itself to de- 
termine specifically what those rights should be. If 
this were to be accepted as the correct interpretation 
of the power of Congress under this Amendment, it 
was clear that the reserved powers of the States would 
henceforth be at the mercy of the federal legislative 
body; for thus the way would be opened to Congress, 
should it see fit, to convert by its statutes all private 
rights into federal rights and as such exclude them 
from state regulation or violation. 

In the case of Ex parte Virginia (100 U. S., 339) 
that portion of the Civil Rights Act which forbade 
state officials to deny to any one the equal pro- 
tection of the law was held constitutional, the Court 
saying: ''The prohibitions of the Fourteenth Amend- 
ment are addressed to the States. ... A State acts 
by its legislature, its executive, or its judicial authori- 
ties. It can act in no other way. The constitutional 
provision, therefore, must mean that no agency of 
the State, or of the officers or agents by whom its 
powers are exerted, shall deny to any person within 
its jurisdiction the equal protection of the laws. Who- 
ever, by virtue of public position under a state gov- 
ernment, deprives another of life, liberty, or property 
without due process of law, or denies or takes away 
the equal protection of the laws, violates the consti- 

183 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tutional inhibition ; and as he acts in the name of and 
for the State, and is clothed with the State's power, 
his act is that of the State. This must be so^ or the 
constitutional prohibition has no meaning." In 
Strauder v. West Virginia (100 U. S., 303) the Su- 
preme Court held unconstitutional and void an act of 
West Virginia which excluded negroes from juries. 
In the Civil Rights Cases (109 U. S., 3), however, 
the Supreme Court declared unconstitutional a portion 
of the Civil Rights Act of 1875 and laid down a doc- 
trine that very considerably lessened the power of 
Congress under the Fourteenth Amendment. The 
doctrine thus declared was that the invasion of rights 
by private individuals was not a subject concerning 
which Congress might legislate. The prohibitions of 
the Amendments being leveled at the States, Congress, 
the Court asserted, might legislate only regarding the 
violation of those Amendments by the States. ^ ' This, ' ' 
said the Court, ''is the legislative power conferred 
upon Congress, and this is the whole of it. It does not 
invest Congress with power to legislate upon subjects 
which are within the domain of state legislation; but 
to provide modes of relief against state legislation or 
state action of the kind referred to. It does not au- 
thorize Congress to create a code of municipal law for 
the regulation of private rights. . . . Until some state 
law has been passed, or some state action through its 
officers or agents has been taken, adverse to the right 
of citizens sought to be protected by the Fourteenth 
Amendment, no legislation of the United States under 
said Amendment, nor any proceedings under such 
legislation can be called into activity." Continuing, 

184 



FEDERAL SUPERVISION OF STATE DUTIES 

the Court said: "If this legislation [the Civil Rights 
Act] is appropriate for enforcing the prohibitions of 
the Amendment, it is difficult to see where it is to stop. 
Why may not Congress, with equal show of authority, 
enact a code of laws for the enforcement and vindi- 
cation of all rights of life, liberty, and property? If 
it is supposable that the States may deprive persons 
of life, liberty, and property without due process of 
law, and the Amendment itself does suppose this, why 
should not Congress proceed at once to prescribe due 
process of law for the protection of every one of these 
fundamental rights, in every possible case, as well as 
to prescribe equal privileges in inns, public convey- 
ances, and the theaters ? ' ' 

In the famous Slaughter House Cases (16 Wall., 
36), decided in 1873, the Supreme Court laid down the 
doctrine which has never since been departed from 
that the words "privileges and immunities of citizens 
of the United States," as used in that clause of the 
Fourteenth Amendment which forbids their abridg- 
ment by the States, refers simply to such special priv- 
ileges and immunities as the citizen possesses by reason 
of his national citizenship, and that, therefore, the 
abridgment by a State of such privileges and immuni- 
ties as its citizens enjoy simply by virtue of their 
state citizenship, is not prohibited. It need not be 
said that this was a decision equal in importance to, 
if not greater than that rendered in the Civil Rights 
Cases. To have so construed the clause in question 
as to make it cover all the rights of citizenship, state 
and federal alike, would practically have been to 
transfer to the Federal Government almost the entire 

185 



THE AMERICAN CONSTITUTIONAL SYSTEM 

police power of the States— that broad power in the 
exercise of which probably nine tenths of the State's 
statutes are passed and which Cooley defines as ' ' The 
whole system of internal regulation by which the State 
seeks not only to preserve the public order and to pre- 
vent offenses against the State, but also to establish 
for the intercourse of citizens with citizens those rules 
of good manners and good neighborhood which are 
calculated to prevent a conflict of rights, and to insure 
to each the uninterrupted enjoyment of his own so 
far as it is reasonably consistent with a like enjoyment 
of rights by others. " ^ It is no wonder, therefore, that 
when called upon to decide between the two possible 
constructions the Court said: ''We do not conceal 
from ourselves the great responsibility which this 
duty devolves upon us. No questions so far-reaching 
and pervading in their consequences, so profoundly 
interesting to the people of this country, and so im- 
portant in their bearings upon the relations of the 
United States, and of the several States to each other 
and to the citizens of the States and of the United 
States, have been before this Court during the official 
life of any of its present members." 

By referring to the "history of the times" at 
which the last three amendments were adopted, the 
Court found in them all one underlying purpose which 
was "the freedom of the slave race, the security and 
firm establishment of that freedom and the protection 
of the newly made freeman and citizen from oppres- 
sions of those who had formerly exercised unlimited 
dominion over him." This being the main and con- 
trolling motive that dictated these Amendments, the 
1 "Constitutional Limitations," p. 572. 
186 



FEDERAL SUPERVISION OF STATE DUTIES 

majority of the Court refused to give them, however 
general their terms, another and far more radical 
meaning. That there was, immediately after the Civil 
War, a strong sentiment in favor of a stronger Na- 
tional Government, the majority of the Court did not 
deny; but they declared, ''however pervading this 
sentiment, and however it may have contributed to 
the adoption of the Amendments we have been con- 
sidering, we do not see in those Amendments any pur- 
pose to destroy the main features or the general sys- 
tem. Under the pressure of all the excited feeling 
growing out of the war, our statesmen have still be- 
lieved that the existence of the States with powers for 
domestic and local government, including the regula- 
tion of civil rights— the rights of person and of prop- 
erty—was essential to the perfect working of our 
complex form of government, though they have 
thought proper to impose additional limitations on the 
States, and to confer additional power on that of the 
nation." 

In result, the effect of the decision of the Supreme 
Court in the Slaughter House Cases was to decide that 
that clause of the Fourteenth Amendment which pro- 
hibits the States from abridging the privileges and 
immunities of citizens of the United States, imposes 
absolutely no new limitations upon the States, for 
prior to the adoption of the Amendment of which it 
constituted a part, the States were confessed by all 
to be without constitutional power to abridge federal 
privileges or immunities.^ 

iln the recent case of Maxwell Dow, 176 U. S., 581, decided 
in 1900, the claim was examined and negatived that the privileges 
and immunities secured against federal infringement by the first 

187 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Although by the decision in the Slaughter House 
and subsequent cases in the Supreme Court, the com- 
mand laid upon the States to respect federal privileges 
and immunities has been shorn of all but declaratory 
significance, and the general police power confirmed 
in the Commonwealths, the other prohibitions of the 
first section of the Fourteenth Amendment have been 
so construed by the Supreme Court as to give to the 
Federal Government a very extensive supervisory 
jurisdiction over state legislation which it did not pos- 
sess prior to 1868. Whenever the claim has been 
made that a state law has worked a deprivation of life, 
liberty, or property without due process of law, or has 
resulted in a denial to any person of the equal protec- 
tion of the laws, the federal courts have assumed juris- 
diction, and, when the claim has been made good, have 
declared the statutes involved void.^ 

It would carry us beyond the scope of this volume 
to show in any detail the manner in which this addi- 
tional right of federal supervision over state legisla- 
tion has been exercised. It is appropriate to say, how- 
ever, that the phrase '^ equal protection of the laws" 

ten Amendments are to be regarded as federal privileges and im- 
munities which, according to the Fourteenth Amendment, may 
not be altered or denied by the States. This point had previ- 
ously been raised in the Spies case {JEx parte Spies, 123 U. S., 
131) but not passed upon. 

1 In the Slaughter House Cases, the Court declared relative to 
the clause providing for the equal protection of the laws : "We 
doubt very much whether any action of a State not directed by 
way of discrimination against the negroes as a class, or on ac- 
count of their race, will ever be held to come within the purview 
of this provision." As a matter of fact, however, this obiter die 
turn has been repeatedly overruled. 

188 



FEDERAL SUPERVISION OF STATE DUTIES 

has not been construed to secure to all persons in the 
United States the benefit of the same laws and reme- 
dies, but only to provide that no one within a State's 
jurisdiction shall be deprived of legal rights or sub- 
jected to legal burdens to which all other persons or 
similar classes of persons are entitled. Furthermore, 
it may be added that the term "due process of law" 
has been defined as simply "a course of legal proceed- 
ings according to those rules and principles which 
have been established in our systems of jurisprudence 
for the protection and enforcement of legal rights. ' ' ^ 
Thus it has been held that due process of law does not 
necessarily involve the right to a trial by jury in civil 
suits at common law, or even to a presentment of a 
grand jury in cases of felony and capital crimes. 
"Apparently," said Justice Field in a dissenting 
opinion in a state court (Carleton v. Rugg, 149 Mass., 
550), "any mode of proceeding duly established by a 
State w^hich provides for an impartial trial, and does 
not violate the fundamental principles of general 
jurisprudence, would be due process of law within the 
meaning of that instrument [the Constitution]." 
And the Supreme Court itself has said : " If the laws 
enacted by a State be within the legitimate sphere of 
legislative activity, and their enforcement be attended 
with observance of those general rules which our sys- 
tem of jurisprudence presents for the security of pri- 
vate rights, the harshness, injustice, and oppressive 
character of such laws will not invalidate them as af- 
fecting life, liberty, or property without due process 
of law" (Mo. Pacific R. R. v. Humes, 115 U. S., 512). 
1 Pennoyer v. Neff, 95 U. S., 714. 
189 



CHAPTER XI 

THE POWER OF THE UNITED STATES TO ACQUIRE 
TERRITORY 

In the chapters that have gone before the effort has 
been made to set forth the constitutional relations 
subsisting between the Union and its commonwealth 
members. From the very beginning, however, the 
American constitutional system has included other 
political units than the States. These units are Ter- 
ritories, Dependencies, and a Federal District or seat 
of National Government.^ To a consideration of the 
constitutional questions incident to the annexation 
and government by the National Government of the 
territories and peoples of which these political ele- 
ments are composed, we shall now turn. This will in- 
volve a discussion of the following points: (1) The 
constitutional power of the United States to acquire 
territories; (2) The modes in which and purposes for 
which they may be acquired; and (3) Their constitu- 
tional status. First then as to 

The Constitutional Power of the United States to Ac- 
quire Territory. At the time of the adoption of the 

iThe term "Dependency" can hardly be said to have been as 
yet accepted as a technically correct term, and possibly never 
may be. In default, however, of a better word the term will be 
here provisionally employed. 

190 



THE POWER TO ACQUIRE TERRITORY 

Constitution and the establishment thereunder of the 
present National Government, the territory subject 
to the sovereignty of the United States consisted of 
the respective territories of the thirteen original 
States and vast reaches of lands to the west, that 
lying north and west of the Ohio River being known 
as the Northwest Territory. These areas had been 
originally ceded to the old Confederation by the States 
and governed according to the provisions of the 
famous Northwest Ordinance of 1787. Upon the es- 
tablishment of the new government in 1789 they were 
turned over to it.^ Contemporary opinion and the 
practice of many years showed the existence of the 
idea that from these lands new States were to be 
formed as fast as the development of their populations 
and resources should warrant. Until that time they 
were to be under the exclusive control of the Federal 
Government. The provisions inserted in the new Con- 
stitution bearing upon this point are the following: 
'^New States may be admitted, by the Congress into 
this Union" (Article IV, Sec. 3, Clause 1); ''The 
Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory 
or other property belonging to the United States " 
(Article IV, Sec. 3, Clause 2). 

No express power is given the United States by the 
Constitution to acquire additional territory. In 1803, 
, however, the vast Louisiana Territory was purchased 
I from France and annexed to the Union ; in 1819 Flor- 
ida was obtained from Spain; in 1845 the State of 

1 To this new government Georgia and North Carolina also 
later ceded their western lands. 

191 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Texas was annexed ; in 1846 the Oregon Territory was 
obtained through discovery, occupation, and conven- 
tion with England; in 1848 and 1853 additional ter- 
ritory was obtained by cession from Mexico; in 1856 
the annexation of the Guano Islands was authorized 
by a congressional statute; in 1867, Alaska, the first 
territory non-contiguous to the United States, was ob- 
tained by purchase from Russia; in the same year 
Midway Island was taken possession of by the Presi- 
dent; in 1898 the Hawaiian Islands were annexed; in 
1898, as a result of the Spanish-American War, the 
islands of Porto Rico, the Philippines, and Guam came 
under the sovereignty of the United States; and in 
1900 three of the Samoan Islands were acquired.^ 

From what grant of power we may now ask did the 
United States Government derive the authority thus 
to increase its territory? 

When, in 1790, North Carolina made a cession to 
the United States of its title to western territory, this 
was accepted by Congress in the act of April 2, 1790, 
without constitutional question. This, it will be ob- 
served, however, involved only a transfer of title from 
a State to the Nation and not an annexation of terri- 
tory foreign to the United States. The acquisition of 
the Louisiana Territory was, however, of this latter 
character, and Jefferson, then President, felt, and ex- 
pressed, as we know, most serious doubts as to the 
constitutionality of the act, though upon grounds of 
political expediency he urged that the treaty pro- 
viding for it be ratified, and, if necessary, a constitu- 

i The term "Insular Possessions" has been officially applied 
to the islands owned by the United States. 

192 



THE POWER TO ACQUIRE TERRITORY 

tional amendment giving to the National Govern- 
ment the necessary power be adopted. Writing 
to John C. Breckenridge, he declared: ''The 
Constitution has made no provision for holding for- 
eign territory, still less for incorporating foreign na- 
tions into the Union. The Executive, in seizing the 
fugitive occurrence which so much advances the good 
of the country, has done an act beyond the Constitu- 
tion. The Legislators, in casting behind them meta- 
physical subtleties and risking themselves like faithful 
servants, must ratify and pay for it and throw them- 
selves on their country for doing for them unauthor- 
ized what we know they would have done for them- 
selves, had they been in a situation to do it. ' ' 

Jefferson stood by no means alone in his doubts as 
to the constitutional power of the United States to 
acquire foreign territory, but these doubts were not 
sufficiently general to lead the people to give expressly, 
by constitutional amendment, that right, the implied 
existence of which was questioned, and since that 
time both political and judicial precedent have estab- 
lished beyond all uncertainty the implied existence in 
the National Government of the necessary authority 
in this matter. 

The express grants of authority which have at dif- 
ferent times been referred to as including by impli- 
cation the right on the part of the United States to 
acquire foreign territory are the following: 

1. The power to declare and carry on war (Art. I, 
Sec. 8, Clause 11). 

2. The power to make treaties (Art. II, Sec. 2, 
Clause 2) . 

13 193 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Besides these sources not a few have argued 
the possession by the United States of this au- 
thority because of its ''inherent sovereignty." This 
theory, though given a certain support by several 
obiter dicta of the Supreme Court/ is, as earlier 
explained, an invalid one. To concede to the National 
Government powers neither expressly granted nor 
implied from those expressly granted, but as founded 
simply upon its sovereignty, is, in effect, to make of 
that government a government of unenumerated in- 
stead of enumerated powers. As was declared by 
Taney in denying that the President had the power to 
authorize the suspension of the writ of habeas corpus: 
' ' Nor can any argument be drawn from the nature of 
sovereignty. . . . The government of the United 
States is one of delegated and limited powers. It 
derives its existence and authority altogether from the 
Constitution, and neither of its branches can exercise 
any of the powers of government beyond those speci- 
fied and granted." ^ 

Turning now to the proper view which holds the 
power to annex territory an implied one, we find that 
the Supreme Court has upon dift'erent occasions as- 
cribed it to each of the two express powers that we 
have mentioned. In American Insurance Co. v. 
Canter (1 Pet., 511) Marshall declared: "The Con- 

1 American Insurance Co. v. Canter, 1 Pet., 511 ; Mormon Church 
V. United States, 136 U. S., 1 ; United States v. Huekabee, 16 
Wall., 414 ; Jones v. United States, 137 U. S., 202. Cf. Gardiner, 
"Our Right to Acquire and Hold Foreign Territory," p. 6; Ma- 
goon, "Report on Legal Status of the Territory," etc., H. Doc. 
234, 56th Cong., 1st Session, p. 3. 

2 Fide Tyler, "Life of Taney," p. 651. 

194 



THE POWER TO ACQUIRE TERRITORY 

stitution confers absolutely upon the government of 
the Union the powers of making war and of making 
treaties; consequently that government possesses the 
power of acquiring territory, either by conquest or 
treaty." This dictum is approvingly quoted in one 
of the recent so-called Insular Cases (De Lima v. Bid- 
will, 182 U. S., 1), decided in 1901.^ 

In addition to the above sources it has been argued 
by some, and even intimated on one or two occasions 
by the Supreme Court, that the power to acquire new 
territory may be found in the right of Congress to 
admit new states to the Union. Not only, however, is 
reference to this source for authority unnecessary, but, 
when appealed to, would not seem to yield to the Na- 
tional Government as ample powers as are furnished 
it when the treaty and war powers are relied upon.^ 

According to the general principles of International 

1 To the same effect see Mormon Church v. United States, 136 
U. S., 1. 

^ "It it [the power of annexation] is to be implied only from 
the latter power [the right to admit new States], it would seem 
quite reasonable to hold that it could be exercised in any case 
only for the purpose of creating a new State out of the acquired 
territory, and there would be no power to govern it except for 
that purpose ; but the right of Congress to admit the acquired 
territory as a State or States, or to refuse to do so, according to 
its own judgment and discretion, is universally admitted, and, 
therefore, it would seem to follow that the power to acquire and 
govern cannot be derived from the power to admit, for, if it did, 
all territory acquired by either of the methods stated would have 
to be converted into a State or States. It may be said that no ter- 
ritory ought to be acquired which cannot be ultimately fitted for 
admission as a State or States— but this is a political and not a 
judicial question."— Address of John G. Carlisle before the Amer- 
ican Bar Association, 1902. 

195 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Law, every sovereign State has the right to acquire 
territory by discovery and occupation. Whether or 
not, however, the United States has that right, when 
considered from the viewpoint of its own Constitution, 
is not at once as obvious. However, the Supreme 
Court has in effect recognized as valid an exercise of 
this right by the United States. This it did under the 
following circumstances. 

In 1856 Congress, by a statute which was reenacted 
in the Revised Statutes, declared that whenever any 
citizen of the United States should discover a deposit 
of guano on any island, rock, or key not within the 
lawful jurisdiction of any other government, and not 
occupied by the citizens of any other government, and 
should take possession thereof, such island, rock, or 
key might, at the discretion of the President ' ' be con- 
sidered as appertaining to the United States." Fur- 
thermore, the act went on to declare, all crimes com- 
mitted on such island, rock, or key should be punishable 
according to United States law in the federal courts. 
Upon one Jones being convicted of murder under the 
provisions of this statute he took an appeal to the 
Supreme Court upon the ground that the federal law 
and federal court could not take cognizance of acts 
committed on the island in question because that 
island was not constitutionally a part of the United 
States. In overruling this plea the Supreme Court 
spoke as follows: "By the law of nations, recognized 
by all civilized States, dominion of new territory may 
be acquired by discovery and occupation, as well as 
by cession or conquest; and when citizens or subjects 
of one nation, in its name and by its authority or 

196 



THE POWER TO ACQUIRE TERRITORY 

with its assent, take and hold actual, continuous, and 
useful possession (although only for the purpose of 
carrying on a particular business, as catching and cur- 
ing fish, or working mines) of territory unoccupied by 
any other government or its citizens, the nation to 
which they belong may exercise such jurisdiction and 
for such period as it sees fit over territory so acquired. 
This principle affords ample warrant for the legisla- 
tion of Congress concerning Guano Islands. . . . Who 
is the sovereign, de jure or de facto, of a territory is 
not a judicial, but a political question, the determina- 
tion of which by the legislative and executive depart- 
ments of any government conclusively binds the 
judges, as well as all other officers, citizens, and sub- 
jects of that government. This principle has always 
been upheld by this court, and has been affirmed under 
a great variety of circumstances" (Jones v. United 
States, 137 U. S., 202). 

This case thus not only practically upheld the right 
of the United States to acquire territory by discovery 
and occupation, but came very near to applying, if 
not explicitly stating, the principle, which we believe 
to be a dangerous if not an invalid one, that the United 
States may exercise a power not enumerated in the 
Constitution, provided it be a power generally pos- 
sessed by sovereign States. It may possibly be argued, 
however, that the right thus to acquire territory may 
be upheld, and was intended in the Jones case to be 
upheld, as a power impliedly included within the 
general power given the Union to control all matters 
subject to regulation by the law of nations. 



197 



CHAPTER XII 

THE MODES IN WHICH, AND PURPOSES FOR WHICH, TER- 
RITORY MAY BE ACQUIRED BY THE UNITED STATES 

Constitutional Modes of Acquiring Territory. Hav- 

ing shown the constitutional power of the United 
States to acquire territory whether by treaty, con- 
quest, or discovery and occupation, we now approach 
the question as to the modes by which this federal 
authority may be exercised. 

A history of the territorial expansion of the United 
States show that territories have been annexed in three 
different ways: (1), by Statute, (2), by Treaty, and 
(3), by Joint Resolution. 

The process of extending American sovereignty by 
simple statute and executive action authorized there- 
by, was illustrated, as we have just seen, in the case 
of the Guano Islands. 

The annexation of territory by treaty has been the 
method most usually employed. Thus the Louisiana 
Territory, Florida, Alaska, the Mexican cessions, the 
Samoan Islands, Porto Rico, and the Philippines were 
obtained in this manner. 

In some cases the United States was in actual effec- 
tive military possession of the territories thus acquired 
for some time prior to the treaties that provided for 

198 



HOW TERRITORY MAY BE ACQUIRED 

their transfer to the United States. The Supreme 
Court has uniformly held that during this period of 
military possession, but before formal transfer by 
treaty, the lands in question remain foreign terri- 
tory. Thus in Fleming v. Page (9 How., 603) the 
Court said: ''A war . . . declared by Congress can 
never be presumed to be waged for the purpose of 
conquest or the acquisition of territory; nor does the 
law declaring the war imply an authority to the Presi- 
dent to enlarge the limits of the United States by 
subjugating the enemy's country. The United 
States, it is true, may extend its boundaries by con- 
quest or treaty, it may demand the cession of territory 
as the condition of peace in order to indemnify its citi- 
zens for the injuries they have suffered, or to reim- 
burse the government for the expense of the war ; but 
this can be done only by the treaty-making power 
or the legislative authority, and is not a part of the 
power conferred upon the President by the declaration 
of war. His duty and his power are purely military. 
... He may invade the hostile country and subject 
it to the sovereignty and authority of the United 
States; but his conquests do not enlarge the boun- 
daries of this Union nor extend the operations of our 
institutions and laws beyond the limits before assigned 
to them by the legislative power." 

This principle, thus laid down, has been reaffirmed 
in the recent Insular Cases in which was determined 
the constitutional status of the islands obtained from 
Spain. ^ 

iDooleyv.United States, 182 U. S., 222. President McKinley was 
criticized, and with justice, for issuing on December 21, 1898, that 

199 



a^HE AMERICAN CONSTITUTIONAL SYSTEM 

In two instances, tliat of Texas in 1845, and Hawaii 
in 1898, the sovereignty of the United States has been 
extended over new territory by means of a Joint Reso- 
lution of the Houses of Congress. In the case of 
Texas an attempt had been made to annex the State 
by treaty, but this requiring a two thirds favorable 
vote in the Senate, had failed. . Thereupon the same 
end was secured by a Joint Resolution which needed 
but a simple majority vote in each of the two branches 
of the national legislature, with, of course, the ap- 
proval of the President. This resolution provided 
that ^'Congress doth consent that the territory prop- 
erly included within and rightfully belonging to the 
republic of Texas may be erected into a new State 
to be called the State of Texas with a republican form 
of government to be adopted by the people of said 
republic, by deputies in convention assembled, with 
the consent of the existing government, in order that 
the same may be admitted as one of the States of the 
Union." Upon Texas taking the action called for by 
this clause. Congress later by Joint Resolution de- 
clared Texas one of the States of the American Union. 

The peculiarity of the annexation of this State was 

is, on a date prior to the ratification of the treaty with Spain ceding 
the Philippines, an executive order in which he declared : " With 
the signature of the treaty of peace between the United States 
and Spain by their respective plenipotentiaries at Paris on the 
10th instant, and as the result of the victories of American arms, 
the future control, disposition, and government of the Philippine 
Islands are ceded to the United States. In fulfilment ofilie rights 
of sovereignty thus acquired," etc. The treaty was not ratified by 
the treaty-making power of the United States until the following 
February, and did not go into effect until April 11, 1899. 

200 



HOW TERRITORY MAY BE ACQUIRED 

not simply that it came under American sovereignty 
by Joint Resolution but that it became at once one of 
the States of the Union, and thus never had the tran- 
sitional territorial status. This fact, indeed, gave 
additional constitutional support to the action of 
Congress in the matter, for to that body is given by 
the Constitution the right to admit new States into 
the Union, and therefore its admission of Texas to 
fellowship with the other American commonwealths 
might easily be construed as a legitimate exercise of 
that power. 

The acquisition of the Hawaiian Islands was an- 
other instance of the extension of the United States 
sovereignty by a simple Joint Resolution of the two 
branches of Congress. In this case, however, the 
action taken was rendered more difficult of constitu- 
tional justification by reason of the fact that the 
islands were not, as was Texas, admitted as a State or 
States of the Union, but were simply annexed as a ter- 
ritory. The admission of Texas to the Union was not, 
therefore, a good precedent, any more than was the 
annexation of the Guano Islands and Midway Island, 
for the reason that those lands were unoccupied .and 
unclaimed by any other State and were taken posses- 
sion of by the United States in pursuance of the 
general right enjoyed by a sovereign State under the 
law of nations to acquire territory by discovery and 
occupation. 

The question as to the constitutionality of the an- 
nexation of Hawaii has, however, never been raised in 
the courts, but should it be done, the Supreme Court 
will almost surely decline to pass upon it, that tribunal 

201 



THE AMERICAN CONSTITUTIONAL SYSTEM 

having declared, as will be remembered, that "Who 
is the sovereign, de jure or de facto, of a territory is 
not a judicial but a political question, the determina- 
tion of which by the legislative and executive depart- 
ments of any government conclusively binds the 
judges, as well as all other officers, citizens, and sub- 
jects of that government" (Jones v. United States, 
137 U. S, 202).i 

Purposes for which Territory may be Acquired. At 

the time that the Philippine Islands were acquired 
by the United States, and for several years there- 
after, the argument was made by some who were op- 
posed to this "imperialistic" policy that the United 
States had not the constitutional power to acquire 
territory except for the purpose of obtaining the ma- 
terial from which new member States of the Union 
might be created within a reasonable period of time ; 
and that, therefore, an unconstitutional act was com- 
mitted by annexing islands which, both by reason of 
their distance from America and the character of their 
populations plainly could not be expected to become 
qualified for statehood within any period of years the 
length of which could be even approximated. Senator 
Hoar declared in the Senate that he had been unable 

1 Upon the constitutional questions involved in the annexation 
of Hawaii see Senate Report, No. 681, 55th Cong., 2nd Session, 
and Speech of Hon. S. R. Mallory in the U. S. Senate, July 1, 
1898. It is barely possible that should the Supreme Court con- 
sent to pass upon the point, it would sustain the action of Con- 
gress as legislation "necessary and proper" for "defence," for 
"regulation of commerce," or for carrjnng into effect some others 
of the duties expressly laid upon Congress by the Constitution. 

202 



HOW TERRITORY MAY BE ACQUIRED 

to find a single reputable authority more than twelve 
months old for the opposite doctrine. Upon the con- 
trary, he and others of the same view were able to cite 
numerous declarations not only of public men, but of 
Congress and even of the courts during past years to 
the effect that American constitutional law did not 
contemplate the holding by the United States for an 
indefinite length of time of dependent territories to 
which statehood could not be granted. Of the fore- 
going claim this much must be admitted ; namely, that 
beyond all probable doubt those who framed and 
adopted the federal Constitution did not anticipate, 
and therefore cannot be said deliberately to have pro- 
vided for, the time when the United States should 
extend its sovereignty over territories not intended 
ultimately for statehood. Nor can it be said that a 
different view was held upon this point by practically 
any one until comparatively recent times. But in ad- 
mitting this, the conclusion that the annexation of 
such territory w^as an unconstitutional act does not 
follow. For in the first place, as has been repeatedly 
declared by the Supreme Court, it is not enough to 
say that a particular case was not in the minds of 
those who framed and adopted the Constitution in 
order to hold an act unconstitutional. One must go 
further and show that had the particular case been 
suggested to those framers and adopters of the Con- 
stitution, they would so have modified its language as 
to exclude it. Thus, as the Court declared in the fa- 
mous Dartmouth College Case : ''The case being within 
the words of the rule, must be within its operations 
likewise, unless there be something within its literal 

203 



THE AMERICAN CONSTITUTIONAL SYSTEM 

construction so obviously absurd or mischievous, or 
repugnant to the general spirit of that instrument 
as to justify those who expounded the Constitution in 
making it an exception" (Dartmouth College v. 
Woodward, 4 Wh., 518). In the second place, even 
were this principle of constitutional construction not 
sufficiently broad to uphold the federal power in 
question, there would be applicable two principles, 
each of which would prevent the Supreme Court from 
passing upon this point. The first of these principles 
is the one recently mentioned that the question of 
de facto and de jure sovereignty is one regarding 
which the courts hold themselves bound by the deter- 
mination of the executive and legislative branches of 
government; the second is that the motive of an act, 
except for the purpose of solving an ambiguity in its 
application, is not a proper subject for judicial exami- 
nation, and that therefore, in the case of an annexation 
of territory, it would not be proper for the court to 
seek to learn whether or not ultimate statehood was 
intended to be granted the lands and peoples obtained. 
Indeed, as we shall see, as regards the contiguous con- 
tinental territories of the United States, it has been 
uniformly held that the grant to them of statehood 
lies wholly within the discretion of Congress, and that 
no legal means exist for compelling action should that 
body arbitrarily refuse for an indefinite length of 
time to grant this privilege to a deserving territory. 



204 



CHAPTER XIII 

THE CONSTITUTIONAL STATUS OF TERRITORIES: THE PO- 
LITICAL RIGHTS OF THEIR INHABITANTS 

The topic to which we have given the title ''The 
Constitutional Status of the Territories" is divisible 
into two parts, the one relating to the political or 
governmental rights of their inhabitants ; the other to 
their private or civil rights. These we shall consider 
separately. First, then, as to the powers of the Fed- 
eral Government over the government of such terri- 
tories as are subject to its sovereignty but are not 
embraced within the boundaries of any of the States. 
This federal authority has been derived from two 
sources: (1) The express power given to Congress 
"to dispose of and make all needful rules and regula- 
tions respecting the territory or other property be- 
longing to the United States," and (2) The implied 
power to govern derived from the right to acquire 
territory. Both of these sources have been recognized 
by the Supreme Court. Thus in Sere v. Pitot (6 Cr., 
332) , decided in 1810, Marshall, after referring to the 
former source of authority, said: "Accordingly we 
find Congress possessing and exercising absolute and 
undisputed power of governing and legislating for 
the territory of Orleans." So also in Clinton v. En- 

205 



THE AMERICAN CONSTITUTIONAL SYSTEM 

glebrecht (13 Wall., 434) the same deduction was 
drawn from this same source. It was early recognized, 
however, that this clause might possibly have been in- 
tended merely to give to Congress a necessary control 
of its public lands as property, and indeed, its phrase- 
ology is scarcely such as one would think the f ramers 
of the Constitution would naturally have employed 
in making a grant of general governmental powers. 
Thus in the same case (Sere v. Pitot) in which the 
express power "to make all needful rules and regula- 
tions ' ' is relied upon, the doctrine is also asserted that 
''the power of governing and of legislating for a 
territory is the inevitable consequence of the right to 
acquire and to hold territory." 

In American Insurance Co. v. Canter (1 Pet., 511) 
the Supreme Court declared that : ' ' Whatever may be 
the source whence the power [to govern territories] is 
derived, the possession of it is unquestioned; " and in 
Murphy v. Ramsay (114 U. S., 15) the question was 
declared "no longer open to controversy" — that it 
had "passed beyond the stage of controversy into 
final judgment. "1 In Mormon Church v. United 
States (136 U. S., 1), Justice Bradley, speaking for 
the Court, said: "Having rightfully acquired said 
territories, the United States government was the only 
one which could impose laws upon them, and its sover- 
eignty over them was complete. No State of the 

1 The power of the Federal Government to govern territories 
has also been deduced from the fact that territories being sub- 
ject to the sovereignty of the United States and admittedly not 
subject to government by any of the States, their control neces- 
sarily falls to the federal power. 

206 



THE GOVERNMENT OF TERRITORIES 

Union had any such right of sovereignty over them ; 
no other country or government had any such right. 
These propositions are so elementary and so necessa- 
rily follow from the condition of things arising upon 
the acquisition of new territory, that they need 'no ar- 
gument to support them." And in De Lima v. Bid- 
well (182 U. S., 1), [one of the Insular Cases], the 
Court said: ''It [the power to govern] is an authority 
which arises, not necessarily from the territorial clause 
of the Constitution but from the necessities of the 
case, and from the inability of the States to act upon 
the subject." 

Not only has there never been any serious dispute 
as to the power of the National Government to govern 
all territories subject to its sovereignty and not in- 
cluded within the boundaries of any of the States, but, 
with equally unanimous assent, this power has been 
held to be practically absolute. That is to say, the 
form of government which shall be erected over these 
territories, and the extent to which their inhabitants 
shall be permitted to participate in this government, 
is recognized to rest wholly within the discretion of 
the President and the federal law-making power. 
In Mormon Church v. United States (136 U. S., 1) the 
Supreme Court said: "The power of Congress over 
the territories is general and plenary." In Na- 
tional Bank V. County of Yankton (101 U. S., 129), 
Chief Justice Waite, speaking for the Court, asserted : 
"Congress may not only abrogate laws of the terri- 
torial legislatures, but it may itself legislate directly 
for the local government. It may make a void act of 
the territorial legislature valid, and a valid act void. 

207 



THE AMERICAN CONSTITUTIONAL SYSTEM 

In other words, it has full and complete legislative 
authority over the people of the territories and all 
the departments of the territorial governments. It 
may do for the territories what the people, under the 
Constitution of the United States, may do for the 
States." Again, in Murphy v. Ramsay (114 U. S., 
15) the Court declared: "The people of the United 
States, as sovereign owners of the National Territo- 
ries, have supreme power over them and their inhabi- 
tants. In the exercise of this sovereign dominion, they 
are represented by the government of the United 
States, to whom all the powers of government over 
that subject have been delegated, subject only to such 
restrictions as are expressed in the Constitution, or 
are necessarily implied in its terms, or in the purposes 
and objects of the power itself; for it may well be 
admitted in respect to this, as to every power of so- 
ciety over its members, that it is not absolute and 
unlimited. But in ordaining government for the ter- 
ritories, and the people who inhabit them, all the 
discretion which belongs to legislative power is vested 
in Congress ; and that extends, beyond all controversy, 
to determining by law, from time to time, the form of 
the local government in a particular Territory, and 
the qualification of those who shall administer it. It 
rests with Congress to say whether, in a given case, 
any of the people resident in the Territory, shall par- 
ticipate in the election of its officers or the making of 
its laws; and it may, therefore, take from them any 
right of suffrage it may previously have conferred, or 
at any time modify or abridge it, as it may deem 
expedient. The right of local self-government, as 

208 



THE GOVERNMENT OF TERRITORIES 

known to our system as a constitutional franchise, be- 
longs, under the Constitution, to the States and to the 
people thereof, by whom that Constitution was or- 
dained, and to whom by its terms all power not con- 
ferred by it upon the government of the United 
States was expressly reserved." 

Finally, in 1850, in a case involving the effect of a 
territorial statute of Florida, the Court said: "They 
are legislative governments, and their courts legisla- 
tive courts, Congress, in the exercise of its powers in 
the organization and government of the territories, 
combining the powers of both the federal and state 
authorities. There is but one system of government 
or of laws operating within their limits, as neither is 
subject to the constitutional provisions in respect to 
state and federal jurisdiction. They are not organ- 
ized under the Constitution, nor subject to its com- 
plex distribution of the powers of government, as the 
organic law; but are the creations, exclusively, of the 
legislative department, and subject to its supervision 
and control. Whether or not there are provisions in 
that instrument which extend to and act upon these 
territorial governments, it is not now material to ex- 
amine" (Benner v. Porter, 9 How., 235). 

This absolute power of Congress to determine the 
political or governmental rights in the territories con- 
stitutionally attaches from the moment that they 
become subject to the sovereignty of the United 
States. Until Congress exercises this right, however, 
and provides them with governments and laws, they 
remain under the control of the federal executive. 
This duty devolves upon the President as a result 

14 209 



THE AMERICAN CONSTITUTIONAL SYSTEM 

from his general obligation to see that the authority 
and peace of the United States are everywhere main- 
tained throughout its territorial limits. Thus after 
the treaty of peace with Spain in 1899, Porto Rico re- 
mained under the control of the President until by 
the act of April 12, 1900, known as the "Foraker 
Act," Congress provided a government for that is- 
land. So also it was by an exercise of the same 
authority that the President, after the same treaty of 
cession, appointed commissions for the government of 
the Philippine Islands. 

On March 2, 1901, Congress enacted ^ that ''All 
military, civil, and judicial powers necessary to gov- 
ern the Philippine Islands . . . shall, until other- 
wise provided by Congress, be vested in such person 
or persons and shall be exercised in such manner as 
the President of the United States shall direct for the 
establishment of civil government and for the main- 
taining and protecting the inhabitants of said islands 
in the free enjoyment of their liberty, property, and 
religion." This act changed the basis of the Philip- 
pine government from a presidential to a congres- 
sional one, but did not change its form, the President 
being given by Congress practically the same powers 
that before that time he had exercised by virtue of his 
position as Chief Executive. By the act of July 1, 
1902, entitled "an act temporarily to provide for the 
administration of the affairs of civil government in 
the Philippine Islands, and for other purposes," Con- 

1 This was the so-called Spooner amendment to the act making 
appropriation for the support of the army for the fiscal year 
ending June 30, 1902. 

210 



THE GOVERNMENT OF TERRITORIES 

gress not only approved and ratified the previous 
acts of the Philippine Commission for the control of 
the islands, and continued their government in the 
Philippine Commission, but went on to define the 
general lines of action that body should take, espe- 
cially with regard to the introduction of local self- 
government as fast as circumstances should warrant. 

The constitutional power of the President to assume 
and exercise the absolute control of territories until 
Congress has made statutory provision for their gov- 
ernment, has been repeatedly affirmed by the Supreme 
Court. In Cross v. Harrison (16 How., 193), speak- 
ing of the government that the executive had estab- 
lished in California, that Court said: ''It had its 
origin in the lawful exercise of a belligerent right 
over a conquered territory. ... It did not cease as 
a matter of course, or as a necessary consequence of 
the restoration of peace. The President might have 
dissolved it by withdrawing the army and navy offi- 
cers who administered it, but that was not done. The 
right inference from the inaction of both is that it was 
meant to be continued until it had been legislatively 
changed." 

Acting in pursuance of its powers. Congress has, 
from time to time, as new territories have been ac- 
quired, established for them by statutes territorial 
governments. The first of these statutes was that of 
August 7, 1789, passed at the first session of the First 
Congress providing for the government of the terri- 
tory northwest of the Ohio River. The latest of these 
statutes are those establishing civil rule in Porto Rico 
and the Philippines. 

. 211 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Generally speaking, it may be said that the govern- 
ments thus created have been and are of four 
kinds. 

First, there is the class of so-called Unorganized 
Territories, at present consisting of Indian Territory 
and Alaska. These have no local self-government but 
are governed by officials nominated by the President 
and confirmed by the Senate, and have for their laws 
such as have been given them by Congress. To this 
class of autocratically governed territories should also 
possibly be added the Samoan, Wake, Midway, and 
Guano Islands which are ruled by officers of the mili- 
tary force of the United States. 

Second, there is the whole class of Organized Ter- 
ritories that has included all of the continental 
territories of the United States except Indian Ter- 
ritory and Alaska, and at present embraces New 
Mexico, Arizona, Oklahoma, and Hawaii. The chief 
executive and judicial officers of these governments 
are nominated by the President and confirmed by the 
Senate and hold office for four years. Their legisla- 
tures consist of two Houses, each elected by those in- 
habitants of the territories who had been given the 
suffrage by federal law. The law-making power of 
these bodies is extended by Congress "to all rightful 
subjects of legislation not inconsistent with the Con- 
stitution and laws of the United States." The laws 
passed in pursuance of this legislative authority are, 
of course, not only subject to scrutiny in the courts as 
to their constitutionality, but may be amended or 
annulled at any time by an act of Congress. 

Third, there is the government of the island Porto 
212 



THE GOVERNMENT OF TERRITORIES 

Rico which stands in a class by itself. According to 
the Foraker Act of April 12, 1900, now (1904) in 
force, its governor and chief executive officials and 
judges are nominated by the President and confirmed 
by the Senate, and its legislature is composed of two 
houses, the upper of which consists of the six chief 
executive officials and five native Porto Ricans, and 
the lower of thirty-five members elected by popular 
vote. 

Fourthl}'-, and finally, there is the government of the 
Philippine Islands by means of a Commission ap- 
pointed by the President and confirmed by the Senate 
under authority granted by Congress. 

Regarding all of these territorial governments it is 
to be said that they are ''congressional" rather than 
"federal" governments. That is to say, they do not 
constitute parts of the General Government, in sensu 
strictiore, but exist only as agents of Congress. There- 
fore, it has been declared, for instance, that the ap- 
pointment of their judges for terms of but four years 
does not violate the provision of the national Consti- 
tution that all federal judges shall hold office for life. 
This was so decided in the case of American Insurance 
Co. V. Canter (1 Pet., 511), in which the Supreme 
Court said of the judicial tribunals that had been es- 
tablished in Florida by Congress : ' ' These courts . . . 
are not constitutional courts in which the judicial 
power conferred by the Constitution on the General 
Government can be deposited. They are incapable of 
receiving it. They are legislative courts, created in 
virtue of the general right of sovereignty which exists 
in the government^ or in virtue of that clause which 
.213 



THE AMERICAN CONSTITUTIONAL SYSTEM 

enables Congress to make all needful rules and regu- 
lations respecting the territory belonging to the United 
States. The jurisdiction with which they are invested 
is not a part of that judicial power which is defined 
in the third article of the Constitution, but was con- 
ferred by Congress in execution of those general pow- 
ers which that body possesses over the territories of 
the United States." 



214 



CHAPTER XIV 

THE CONSTITUTIONAL STATUS OF TERRITORIES : THE 
CIVIL RIGHTS OF THEIR INHABITANTS 

The Constitution of the United States contains a 
number of express limitations upon the federal legis- 
lative power. In addition to those contained in the 
first ten amendments relative to freedom of religion, 
speech, and press, the quartering of troops, the right 
of the people to assemble, to petition, to keep and bear 
arms, to be secure against unreasonable searches and 
seizures, to presentment or indictment by jury, to 
speedy trial, to juries in civil suits, to immunity from 
excessive bail and fines and cruel and unusual punish- 
ments, etc., it is elsewhere provided in the Constitution 
that all duties, imposts, and excises shall be uniform 
throughout the United States, that the writ of habeas 
corpus shall not be suspended, except under certain 
specified circumstances, that no bill of attainder or 
ex post facto law shall be passed, no capitation or other 
direct tax laid except in proportion to population, no 
duty laid upon goods exported from a State, no com- 
mercial preferences given to the ports of one State 
over those of another, no money drawn from the 
treasury but in consequence of an appropriation made 
by law, no title of nobility granted, etc. The Thir- 

215 



THE AMERICAN CONSTITUTIONAL SYSTEM 

teenth Amendment also declares that " neither sla- 
very nor involuntary servitude, except as punishment 
for crime whereof the party shall have been duly con- 
victed, shall exist within the United States, or any 
place subject to their jurisdiction." 

A\Tien legislating for the States or their inhabitants 
these limitations have of course to be observed. The 
question whether the same is true when Congress is 
legislating for the territories and their populations 
has, however, been recently subjected to a most severe 
debate, and even now only a partial settlement of it 
by the Supreme Court has been obtained. The answer 
to this question has involved a reexamination of the 
fundamental nature of the federal Constitution and of 
the purposes for which it was framed and adopted. 
By a series of judgments rendered in the recently de- 
cided ''Insular Cases," the Supreme Court has deter- 
mined the following points. 

In the case of De Lima v. Bidwell (182 U. S., 1), 
decided May 27, 1901, a majority of the justices— five 
out of nine — held that immediately upon the ratifica- 
tion of the treaty of peace with Spain in 1898, ceding 
Porto Rico to the United States, that island, being al- 
ready in the possession of the United States, ceased to 
be foreign territory and came under the sovereignty 
of the United States, with a result that the existing 
tariff act, which by its terms applied to imports from 
"foreign countries," no longer was applicable to 
goods coming to the United States from Porto Rico. 
In a later case the same doctrine was applied to the 
Philippine Islands, the point being overruled that, be- 
cause of the resistance at the time being offered to 

216 



STATUS OF TERRITORIES 



American occupation by the natives, the United States 
was not in actual possession of them.^ 

In both cases four justices dissented, not, however, 
upon the ground that these islands had not come under 
the sovereignty of the United States, but because, as 
they thought, the necessary act of Congress subjecting 
them to the revenue laws of the United States had not 
been passed. The doctrine of the minority, in other 
words, was, that the mere act of cession, ratified by 
the treaty-making power, did not of itself extend over 
the ceded territory the government and laws of the 
United States, but that to effectuate this there must be 
either an express provision in the treaty itself to that 
effect or a subsequent act of Congress. 

In the case of Downes v. Bidwell (182 U. S., 244), 
decided May 27, 1901, five of the nine justices of the 
Supreme Court concurred in holding that, though by 
the treaty of cession the island of Porto Rico came 
under the sovereignty of the United States, and, when 
viewed from the standpoint of all other nations be- 
came a part of the United States, yet, when looked at 
from the viewpoint of its own public law, it did not 
become a part of the "United States" as that term is 
used in the Constitution. 

In order to arrive at this conclusion one of these 
five justices — Brown — reasoned as follows : 

After calling attention to the fact that, as decided 
in the case of De Lima v. Bidwell, by cession by treaty 
with a foreign power, a territory, already in the actual 
possession of the United States, at once ceased to be 

1 Fourteen Diamond Rings v. United States, 183 U. S., 176, 
decided December 2, 1901. 

217 



THE AMERICAN CONSTITUTIONAL SYSTEM 

foreign and became domestic territory, he pointed 
out that the cases under consideration involved the 
further and more important question whether upon 
becoming domestic territory the provisions of the 
federal Constitution were extended of their own force 
over annexed territories. The Constitution not 
itself directly giving an answer to this, the so- 
lution, he said, would have to be found in the nature 
of the government created by that instrument. Ac- 
cording to this justice's view, this instrument was 
created, if not hy the States, at least exclusively for 
the States, and not for the territories or any other 
extra-State lands that might belong to the United 
States. Thus, to quote his own words, "It can no- 
where be inferred that the territories were considered 
a part of the United States. The Constitution was 
created by the people of the United States, as a union 
of States; and even the provision relied upon here, 
that all duties, imposts, and excises should be uni- 
form 'throughout the United States' is explained by 
the subsequent provisions of the Constitution, that 
*no tax or duty shall be laid on articles exported from 
any State/ and 'no preference shall be given by any 
regulation of commerce or revenue to the ports of one 
State over those of another; nor shall vessels bound 
to or from one State be obliged to enter, clear, or pay 
duties in another.' In short, the Constitution deals 
with States, their people and their representatives. 
The Thirteenth Amendment to the Constitution pro- 
hibiting slavery and involuntary servitude 'within 
the United States, or in any place subject to their 
jurisdiction' is also significant as showing that there 

218 



STATUS OF TERRITORIES 



may be places within the jurisdiction of the United 
States that are no part of the Union. . . . Upon the 
other hand, the Fourteenth Amendment, upon the 
subject of citizenship, declares only that 'all persons 
born or naturalized in the United States, and subject 
to the jurisdiction thereof, are citizens of the United 
States, and of the State wherein they reside.' Here 
there is a limitation to persons born or naturalized in 
the United States, which is not extended to persons 
born in any place 'subject to their jurisdiction.' " 

To restate, then, the position of Justice Brown, it 
would appear that, according to his view, the "United 
States," when looked at from the domestic or consti- 
tutional viewpoint, includes only the individual States 
such as Virginia, New York, Texas, etc., in Union. The 
Federal District, the territories, and, in fact, all areas 
not within the boundaries of some one of these States, 
though under the national sovereignty, are not a part 
of the Union. Looked at, however, from the inter- 
national viewpoint, the term United States has, as 
Justice Brown later observes, "a broader meaning 
than when used in the Constitution, and includes all 
territories subject to the jurisdiction of the Federal 
Government, wherever located. In its treaties and 
conventions with foreign nations this government is 
a unit. This is so, not because the territories comprise 
a part of the government established by the people of 
the States in their Constitution, but because the Fed- 
eral Government is the only authorized organ of the 
territories, as well as of the States, in their foreign 
relations. ' ' ^ 

1 Citing De Geofroy v. Biggs, 133 U. S., 258. 
219 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Not being considered a part of the political unit 
created and organized by the federal Constitution, it 
would seem logically to follow that the non-State 
areas, or rather their populations, would not be en- 
titled to any of the privileges or immunities defined in 
that instrument. But Justice Brown does not draw 
this conclusion. Speaking of the limitations laid upon 
the powers of Congress by the Constitution, he says: 

''There is a clear distinction between such prohibi- 
tions as go to the very root of the power of Congress 
to act at all, irrespective of time and place, and such 
as are operative only 'throughout the United States' 
or among the several States. Thus, when the Consti- 
tution declares that 'no bill of attainder or ex post 
facto law shall be passed,' and that 'no title of nobility 
shall be granted by the United States' it goes to the 
competency of Congress to pass a bill of that descrip- 
tion. Perhaps the same remark may be applied to the 
First Amendment that 'Congress shall make no law 
respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of 
speech; or of the press; or the right of the people to 
peacefully assemble and to petition the government 
for a redress of grievances.' We do not wish, how- 
ever, to be understood as expressing an opinion how 
far the bill of rights contained in the first eight 
Amendments is of general and how far of local appli- 
cation. Upon the other hand, when the Constitution 
declares that all duties shall be uniform 'throughout 
the United States' it becomes necessary to inquire 
whether there be any territory over which Congress 
has jurisdiction which is not a part of the 'United 

220 



STATUS OF TERRITORIES 



States,' by which term we understand the States 
whose people united to form the Constitution, and 
such as have since been admitted to the Union upon an 
equality with them." And later on he says: "We 
suggest, without intending to decide, that there ma> 
be a distinction between certain natural rights en- 
forced in the Constitution by prohibitions against 
interference with them, and what may be termed ar- 
tificial or remedial rights which are peculiar to our 
own system of jurisprudence. Of the former class are 
the rights to one's own religious opinions and to a 
public expression of them, or, as sometimes said, to 
worship God according to the dictates of one's own 
conscience; the right to personal liberty and indi- 
vidual property; to freedom of speech and of the 
press; to free access to courts of justice, to due pro- 
cess of law, and to an equal protection of the laws; 
to immunities from unreasonable searches and seizures, 
as well as cruel and unusual punishments ; and to such 
other immunities as are indispensable to a free gov- 
ernment. Of the latter class are the rights to citizen- 
ship, suffrage (Minor v. Happersett, 21 Wall., 162), 
and to the particular methods of procedure pointed 
out in the Constitution, which are peculiar to Anglo- 
Saxon jurisprudence, and some of which have already 
been held by the States to be unnecessary to the proper 
protection of individuals. 

' ' Whatever may be finally decided by the American 
people as to the status of these islands and their in- 
habitants, — whether they shall be introduced into the 
sisterhood of States or be permitted to form indepen- 
dent governments,— it does not follow that in the 

221 



THE AMERICAN CONSTITUTIONAL SYSTEM 

meantime, awaiting that decision, the people are in 
the matter of personal rights unprotected by the pro- 
visions of our Constitution and subject to the merely 
arbitrary control of Congress. Even if regarded as 
aliens, they are entitled under the principles of the 
Constitution, to be protected in life, liberty, and 
property. This has been frequently held by this 
Court in respect to the Chinese, even when aliens, not 
possessed of the political rights of citizens of the 
United States [citing cases]. We do not desire, how- 
ever, to anticipate the difficulties which would natu- 
rally arise in this connection, but merely to disclaim 
any intention to hold that the inhabitants of these 
territories are subject to an unrestrained power on the 
part of Congress to deal with them upon the theory 
that they have no rights which it is bound to protect. ' ' 
According to Justice Brown, then, there are some 
provisions of the Constitution that control Congress 
when legislating for such territorial possessions as 
are not within the States, and other provisions that 
do not. Those that do not, he says, may, however, be 
made applicable by acts of Congress, and in part this 
has already been done in the case of all but the re- 
cently acquired possessions. And, he adds, "when 
the Constitution has been once formally extended by 
Congress to territories, neither Congress nor the terri- 
torial legislature can enact laws inconsistent there- 
with. ' ' In making this last assertion he is indubitably 
incorrect. If an act of legislation is required to ex- 
tend the Constitution over a territory, it goes there 
not as a Constitution but as a statute, and an irre- 
pealable statute is admitted by every one to be an 

222 



STATUS OF TERRITORIES 



impossibility— every legislature necessarily possessing 
a power to repeal equal to its power to enact. This 
being so, if the premises of Justice Brown be accepted, 
the conclusion must also be accepted that at the pres- 
ent time every territory of the United States, organ- 
ized and unorganized, contiguous and non-contigu- 
ous, continental and insular, still remains, except 
possibly as to a few general rights, absolutely subject 
to the arbitrary will of Congress. Arizona, New 
Mexico, Oklahoma, and even the District of Columbia 
in this respect stand upon a footing exactly the same 
as that of Porto Rico or the Philippines. 

The foregoing, however, is not the only objection- 
able conclusion that may be drawn from Justice 
Brown's reasoning. Logically it would seem that his 
premise that the Constitution was intended only for 
the States would lead to the conclusion that Congress, 
which of course derives all its powers from that in- 
strument, would not have the authority to govern ter- 
ritories at all. Hon. John G. Carlisle, in his address 
to the American Bar Association, has stated this di- 
lemma very clearly. ' ' Whether we agree to it or not, ' ' 
he says, ''we can all understand the proposition that 
the Constitution was made for the States, and that, 
of its own force, it has no application to a territory. / 
It is very simple, and, if it could be established, it 
w^ould put an end to the controversy, but it would also 
put an end to the constitutional power of Congress 
to govern a territory, because that power would not be 
included in any of those delegated to that body. All 
its powers would be confined to the States. No power 
to govern a territory could be implied, because, ac- 

223 



THE AMERICAN CONSTITUTIONAL SYSTEM 

cording to this theory, it would be inconsistent with 
the very purpose for which the Constitution was made, 
and we would, therefore, be in the awkward position 
of possessing the power to acquire territory, but with- 
out power to govern it unless immediately admitted 
as a State." 

This very radical position taken by Justice Brown 
in the Insular Cases has been stated at some length 
because of the prominence that has been given it in 
the newspapers and public discussions of the judg- 
ments rendered by the Supreme Court in the Insular 
Cases, As a matter of fact, however, this position 
was not concurred in by any one of the other eight 
justices, and it thus stands not only unsupported by 
previous opinions of the Court, but in flat contradic- 
tion to many of them. The four justices that con- 
curred with Justice Brown in the judgment that was 
rendered in the case of DoAvnes v. Bidwell, namely, 
that the constitutional provision that duties shall be 
uniform "throughout the United States" does not 
restrain Congress in legislating for the newly acquired 
islands, were able to do this by the following reason- 
ing. 

The "United States," as that term is employed in 
the Constitution, they said, includes not simply the 
States, as Justice Brown had said, but also such terri- 
tories as have been "incorporated" with them; and 
the Constitution itself therefore extends over them 
as well as over the States— not of course, however, in 
the sense that the powers of Congress when legislating 
for the States and the incorporated territories are the 
same, but that so far as applicable, the provisions of 

224 



STATUS OF TERRITORIES 



the Constitution are at once applicable to all terri- 
tories subject to the sovereignty of the United States, 
and therefore require no act of Congress for their 
extension, nor can their application to such territories 
be denied by Congress. 

These four justices were the same that had dissented 
from the judgment in the De Lima v. Bidwell case, 
which decided that by the treaty of cession Porto Rico 
at once ceased to be ''foreign territory" within the 
meaning of the federal tariff laws. Reaffirming this 
same opinion in the Downes case, they asserted that 
by the ratification of the treaty of cession Porto Rico 
came under the sovereignty of the United States, or, 
to use their own expression, became "appurtenant" 
to it, but was not thereby "incorporated" into the 
"United States." In other words, it became a terri- 
tory belonging to the United States but not, when 
looked at from a constitutional viewpoint, a part 
thereof. To effect this latter change of status, they 
declared, the treaty-making power is incompetent, the 
approval of Congress, express or implied, being re- 
quired. 

Without attempting even a summary of the legis- 
lative acts and judicial expressions which these jus- 
i tices claimed supported them in their view, we may 
profitably reproduce their conclusion in their own 
words : " It is, " they said, ..." indubitably settled by 
the principles of the law of nations, by the nature of 
the government created under the Constitution, by the 
express and implied powers conferred upon that gov- 
ernment by the Constitution, by the mode in which 
those powers have been executed from the beginning, 
15 225 



THE AMERICAN CONSTITUTIONAL SYSTEM 

and by an unbroken line of decisions of this Court, 
first announced by Marshall and followed and lucidly 
expounded by Taney, that the treaty-making power 
cannot incorporate territory into the United States 
without the express or implied assent of Congress, 
that it may insert in a treaty conditions against im- 
mediate incorporation, and that, on the other hand, 
when it has expressed in the treaty the conditions fa- 
vorable to incorporation, they will, if the treaty be not 
repudiated by Congress, have the force of the law of 
the land, and therefore by the fulfilment of such con- 
ditions cause incorporation to result. It must follow, 
therefore, that where a treaty contains no conditions 
for incorporation, and, above all, where it not only has 
no such conditions, but expressly provides to the con- 
trary, that incorporation does not arise until in the 
wisdom of Congress it is deemed that the acquired 
territory has reached that state where it is proper that 
it should enter into and form a part of the American 
family. ' ' ^ 

As has been already said, according to the view of 
these four justices, the Constitution is the charter of 
government not only of the States but also both of the 
territories that have been incorporated into the Union 
and those merely appurtenant to the United States. 
Every function of the Federal Government, they de- 

1 Article IX of the Spanish-American treaty contains the fol- 
lowing clause : " The civil rights and political status of the na- 
tive inhabitants of the territories hereby ceded to the United 
States shall be determined by Congress." Spanish subjects, na- 
tives of Spain, are by the same article to be permitted to elect 
whether they will become United States subjects or retain their 
Spanish citizenship. 

226 



STATUS OF TERRITORIES 



clare, is derived from the Constitution and that in- 
strument is everywhere potential so far as its pro- 
visions are applicable. Therefore, "in the case of the 
territories, as in every other instance when a provision 
of the Constitution is invoked, the question which 
arises is, not whether the Constitution is operative, 
for that is self-evident, but whether the provision re- 
lied on is applicable." Starting, then, with this prin- 
ciple and the premise that Porto Rico was not by the 
treaty of cession incorporated into the United States, 
these justices proceed to determine what provisions 
of the Constitution are applicable to it. 

The limitations placed by the Constitution upon the 
powers of Congress they divided into two classes which 
correspond quite closely to the two classes recognized 
by Justice Brown. "Undoubtedly," they said "there 
are general prohibitions in the Constitution in favor 
of the liberty and property of the citizen, which are 
not mere regulations as to the form and manner in 
which a conceded power may be exercised, but which 
are an absolute denial of all authority under any cir- 
cumstances or conditions to do particular acts." 
These prohibitions are operative upon Congress when 
legislating for territories whether incorporate or 
merely appurtenant. 

Upon the other hand, they asserted, there are limita- 
tions upon the powers of Congress which apply only 
when that body is enacting laws for the United States, 
that is, for the States and the incorporated territories. 
Among the limitations of this sort, they held, is the 
one involved in the case then decided, providing that 
all duties shall be uniform "throughout the United 

227 



THE AMERICAN CONSTITUTIONAL SYSTEM 

States." Therefore, they held, that that portion of 
the Foraker Act which provided for Porto Hico a 
tariff different from that in force in the United States 
was not unconstitutional. 

Four justices dissented both from the judgment ren- 
dered in this case and from the reasonings by which 
it was supported. According to their view there is 
no constitutional distinction to be drawn between ter- 
ritories incorporated into the United States and terri- 
tories unincorporated or merely appurtenant to the 
United States, States and territories, they declared, 
are the only political units known to American Con- 
stitutional Law, and when, by a treaty of cession and 
actual occupation, lands and their inhabitants have 
come under the sovereignty of the United States, such 
lands are a part of the United States, and no approv- 
ing act of Congress is needed or is efficient to increase 
the constitutional privileges to which they are entitled 
and to make effective the legislative limitations upon 
the powers of Congress. This view they showed to 
have been the one almost uniformly accepted by all 
three of the departments of the General Government 
since the adoption of the Constitution. Especially 
they relied upon the case of Loughborough v. Blake 
(5 Wh., 317), which had never been overruled, in 
which Chief Justice Marshall, when asked to hold that 
the District of Columbia was not a part of the United 
States, declared: "Does this term [the United States] 
designate the whole or any particular portion of the 
American empire? Certainly this question can admit 
of but one answer. It is the name given to our great 
republic, which is composed of States and territories. 

228 



STATUS OF TERRITORIES 



The District of Columbia, or the territory west of the 
Missouri, is not less within the United States than 
Maryland or Pennsylvania, and it is not less necessary, 
on the principles of our Constitution, that uniformity 
in the imposition of imposts, duties, and excises should 
be observed in the one than in the other." 

In the separate opinion which he prepared, Justice 
Harlan was especially emphatic in his repudiation 
both of the doctrine asserted by Justice Brown that 
the Constitution was created "by the people of the 
United States, as a union of States, to be governed 
solely by representatives of the States," and of the 
theory of the other four justices as to the status of 
' ' unincorporated ' ' territories. 

In order fully to appreciate the radical character 
of the doctrine held by the four justices who con- 
curred with Justice Brown in the judgment in the 
Downes case, it is necessary clearly to appreciate 
that it was held, in effect, that this so-called incor- 
poration of a territory by Congress into the United 
States is not an act the commission of which is to be 
determined by facts, but only by the formal declara- 
tion of an intention expressly declared by Congress. 
So lon^ as this intention is not asserted, a terri- 
tory is declared to remain unincorporated into the 
United States notwithstanding the fact that, as was 
the case in Porto Rico, a complete territorial govern- 
ment may have been created, federal courts estab- 
lished, with the right of appeal therefrom to the 
United States Supreme Court, and all the local officials 
required to take an oath to support the Constitution 
of a Union of which they were not a part. Especially 

229 



THE AMERICAN CONSTITUTIONAL SYSTEM 

difficult to accept is the declaration that the treaty- 
making power of the National Government is by itself 
incompetent to add territory to the United States in 
a domestic, constitutional sense. The authority of 
treaty-making power to annex territory is conceded; 
the Constitution itself places treaties upon a plane of 
equality with the statutes of Congress; and the Su- 
preme Court has repeatedly affirmed that a subsequent 
treaty operates as a repeal of all acts of Congress 
inconsistent with it; wherefore it would seem irresis- 
tibly to follow that when the treaty-making power has 
accepted an unconditional cession of territory to the 
United States, that act is as absolutely valid and as 
fully operative as though Congress itself had legislated 
upon the subject. To assert the contrary is, in effect, 
to say that the treaty-making and the law-making 
powers are not coordinate in power, the express pro- 
vision of the Constitution to the contrary notwith- 
standing. 

Another objection to the doctrine of the Downes 
case which it seems absolutely impossible to overcome, 
is that, in reality, it does not simply assert the right 
of Congress to legislate regarding unincorporated ter- 
ri-feory without regard to some of the limitations im- 
posed by the Constitution, but declares that in the 
exercise of this absolute power Congress may, in effect 
at least, disregard those same restrictions with refer- 
ence to the inhabitants of the States of the Union. 
No argument is needed to show that a tariff law which 
affects articles taken from a State to an unincorpo- 
rated territory, or from the latter to the former, affects 
the inhabitants of both, and cannot therefore be said 

230 



STATUS OF TERRITORIES 



to be simply a local law. But if not limited in its 
effects to the unincorporated territory in question, it 
would seem to be an act necessarily subject to the 
constitutional limitations placed upon Congress when 
legislating for the States. It is therefore impossible 
to escape the arguments of the dissenting justices in 
the Downes case when they say : ' ' Conceding that the 
power to tax for the purposes of territorial govern- 
ment is implied from the power to govern territory, 
whether the latter power is attributed to the power to 
acquire or the power to make needful rules and regu- 
lations, these particular duties are nevertheless not 
local in their nature, but are imposed as in the exercise 
of national powers. The levy is clearly a regulation 
of commerce, and a regulation affecting the States 
and their people as well as this territory and its people. 
... In any point of view, the imposition of duties 
on commerce operates to regulate commerce, and is 
not a matter of local legislation; and it follows that 
the levy of these duties was in the exercise of the 
national power to do so, and subject to the requirement 
of geographical uniformity." 

Lastly, it may be said in objection to the doctrines 
declared in the Downes case, that in attempting to 
give to Congress a right to legislate for certain terri- 
tories under United States sovereignty free from cer- 
tain limitations placed by the Constitution upon its 
powers, there is seriously weakened, if not, from a 
strictly logical standpoint, absolutely destroyed, that 
most fundamental principle of our constitutional ju- 
risprudence according to which all the provisions of 
the Constitution are equally binding upon Congress. 

231 



THE AMERICAN CONSTITUTIONAL SYSTEM 

The distinction that is made between the absolute 
prohibitions of legislative power and the limitations 
imposed by the Constitution upon the exercise of the 
powers that are granted, is clearly not qualified to sup- 
port the conclusion that Congress under certain cir- 
cumstances may disregard the latter when it may not 
the former. As Chief Justice Fuller declared in his 
dissenting opinion : ' ' It is idle to discuss the distinc- 
tion between a total want of power and a defective 
exercise of it;" and again, ''The powers delegated by 
the people to their agents are not enlarged by the 
expansion of the domain within which they are exer- 
cised. When the restriction on the exercise of a par- 
ticular power by a particular agent is ascertained, 
that is an end to the question. To hold otherwise is 
to overthrow the basis of our constitutional law." 
Mr. Carlisle in the address from which we have al- 
ready once quoted, has also shown so clearly the fal- 
lacy of the argument of the prevailing opinion upon 
this point that we are justified in reproducing his 
words. He says: "The distinction attempted to be 
taken between the obligatory force of absolute pro- 
hibitions upon the power of Congress and the obli- 
gatory force of limitations and qualifications imposed 
by the Constitution upon the exercise of its powers 
over a particular subject, cannot, in my opinion, be 
sustained by any sound process of reasoning. It is 
true that there is a difference in degree between an 
absolute denial of all power to do a particular thing 
and a grant of power to do that thing to a limited 
extent, or in a prescribed manner only; but the ab- 
solute prohibition and the express or implied limita- 

232 



STATUS OF TERRITORIES 



tion are equally obligatory upon Congress. It is 
bound to obey both or its act is void. ... To say 
that Congress, in legislating for a territory, is not 
bound by the constitutional limitations upon a 
granted power, but is or may be bound by the express 
prohibitions, is simply to assert that all parts of the 
Constitution are not of equal force and effect as re- 
straints upon legislation, and that a power not granted 
may be constitutionally exercised if it is not expressly 
prohibited, a theory, which, if sanctioned by the ju- 
diciary, would at once revolutionize the government. 
It would no longer be a government of enumerated 
and delegated powers, but would possess the whole 
mass of sovereign power which is now vested in the 
people, subject only to the comparatively few express 
prohibitions. ' ' 

The latest of the cases dealing with the question of 
the civil rights of the inhabitants of the insular pos- 
sessions of the United States is that of The Territory 
of Hawaii v. Mankichi (190 U. S., 197), decided June 
1, 1903. The facts and questions of law involved 
in this case were these. The Joint Resolution of Con- 
gress of July 7, 1898, providing for the annexation of 
the Hawaiian Islands, expressly provided that ^'The 
municipal legislation of the Hawaiian Islands, . . . 
not inconsistent with this joint resolution, nor con- 
trary to the Constitution of the United States, nor to 
any existing treaty of the United States, shall remain 
in force until the Congress of the United States shall 
otherwise determine." After the annexation to the 
United States, Congress not having determined other- 
wise, the defendant in error, Mankichi, was tried for 

233 



THE AMERICAN CONSTITUTIONAL SYSTEM 

and convicted of manslaughter according to the usual 
course of procedure in force in the Republic of Ha- 
waii prior to July 7, 1898, which course of procedure 
did not require the indictment to be found by a grand 
jury, and which permitted a less number than the 
entire twelve of the petit jury to convict. A petition 
for a writ of habeas corpus having been made by Man- 
kichi upon the ground that, according to the Constitu- 
tion of the United States, one might not be tried for 
manslaughter except upon an indictment or present- 
ment found by a grand jury, nor convicted except by 
a unanimous petit jury, and the case having been ap- 
pealed to the Supreme Court of the United States, 
that tribunal was called upon to determine: first, 
whether it was the intention and the necessary effect 
of the annexing joint resolution to make these consti- 
tutional provisions immediately applicable to the 
islands; and secondly, if it did not, whether it lay 
within the power of Congress or of the authorities of 
Hawaii to deny to the accused the rights in question. 
Both of these questions the majority of the court, five 
justices, answered in the affirmative. 

Passing upon the intention and effect of the annex- 
ing resolution, Justice Brown in his opinion said: ''Of 
course, under the Newland's [annexing] resolution, 
any new legislation must conform to the Constitution 
of the United States; but how far the exceptions to 
the existing municipal legislation were intended to 
abolish existing laws must depend somewhat upon cir- 
cumstances. Where the immediate application of the 
Constitution required no new legislation to take the 
place of that which the Constitution abolished, it may 

234 



STATUS OF TERRITORIES 



be well held to have taken immediate effect ; but where 
the application of a procedure well known and acqui- 
esced in left nothing to take its place, without new 
legislation, the result might be so disastrous that we 
might well say that it could not have been within the 
contemplation of Congress." 

With reference to the question of the non-applica- 
bility ex proprio vigors of the constitutional provisions 
involved, Justice Brown declared: "Most, if not all, 
of the privileges and immunities contained in the Bill 
of Rights of the Constitution were intended to apply 
from the moment of annexation; but we place our 
decision of this case upon the ground that the two 
rights alleged to be violated in this case are not funda- 
mental in their nature, but concern merely a method 
of procedure which sixty years of practice had shown 
to be suited to the conditions of the islands, and well 
calculated to conserve the rights of their citizens to 
their lives, their property, and their well-being." 

Two of the majority justices further justified the 
judgment that was rendered upon the ground, "That 
as a consequence of the relation which the Hawaiian 
Islands occupied toward the United States, growing 
out of the resolution of annexation, the provisions of 
the Fifth and Sixth Amendments of the Constitution 
concerning grand and petit juries were not applicable 
to that territory, because whilst the effect of the reso- 
lution of annexation was to acquire the islands, and 
subject them to the sovereignty of the United States, 
neither the terms of the resolution nor the situation 
which arose from it served to incorporate the Hawaiian 
Islands into the United States, and make them an 

235 



THE AMERICAN CONSTITUTIONAL SYSTEM 

integral part thereof." In other words, these two 
justices held the case to be controlled by the decision 
in Downes v. Bidwell. 

To the foregoing judgment of the Court as well as 
to the reasoning by which it was supported, four jus- 
tices entered an emphatic dissent. Three of these con- 
tented themselves simply with an argument that, as 
a matter of fact, the provision of the resolution of an- 
nexation which has been quoted above, validating all 
existing legislation, except such as might be contrary 
to the Constitution of the United States, should be 
construed as having extended over the islands the 
Fifth and Sixth Amendments to that instrument. 
Justice Harlan, however, in his dissenting opinion, in 
addition to this, attacked the validity of the position 
assumed by the majority that it was within the con- 
stitutional power of Congress to exclude from opera- 
tion in a territory, incorporate or not incorporate, any 
of the provisions of the Constitution. "In my opin- 
ion," said he, "the Constitution of the United States 
became the supreme law of Hawaii immediately upon 
the acquisition by the United States of complete sov- 
ereignty over the Hawaiian Islands, and without any 
act of Congress formally extending the Constitution 
to those islands. It then, at least, became controlling, 
beyond the power of Congress to prevent. From the 
moment when the government of Hawaii accepted the 
joint resolution of 1898, by a formal transfer of its 
sovereignty to the United States,— when the flag of 
Hawaii was taken down, by authority of Hawaii, and 
in its place was raised that of the United States, — 
every human being in Hawaii charged with the com- 

236 



STATUS OF TERRITORIES 



mission of crime there could have rightly insisted that 
neither his life nor his liberty could be taken, as pun- 
ishment for crime, by any process, or as the result of 
any mode of procedure, that was inconsistent with the 
Constitution of the United States. ... I stand by 
the doctrine that the Constitution is the supreme law 
of every territory, as soon as it comes under the sov- 
ereign dominion of the United States for purposes of 
civil administration, and Avhose inhabitants are under 
its entire authority and jurisdiction. I could not hold 
otherwise without conceding the power of Congress, 
the creature of the Constitution, by mere non-action, 
to withhold vital constitutional guarantees from the 
inhabitants of a territory governed by the authority, 
and only by the authority, of the United States. ' ' 

As regards the assertion made in the majority opin- 
ion that the rights secured by the Fifth and Sixth 
Amendments are not "fundamental," Justice Harlan 
declared : " It is a new doctrine, I take leave to say, in 
our constitutional jurisprudence, that the framers of 
the Constitution did not regard those provisions and 
the rights secured by them, as fundamental in their 
nature. It is an undisputed fact in the history of the 
Constitution that that instrument would not have been 
accepted by the required number of States, but for 
the promise of the friends of that instrument, at the 
time, that immediately upon the adoption of the Con- 
stitution, amendments would be proposed and made 
that should prevent the infringement by any federal 
tribunal or agency, of the rights then commonly re- 
garded as embraced in Anglo-Saxon liberty; among 
which rights, according to universal belief at that time, 

237 



THE AMERICAN CONSTITUTIONAL SYSTEM 

were those secured by the provisions relating to grand 
and petit juries." 

In the foregoing account of the "Insular Cases" 
there has been given a statement not only of the pre- 
vailing but of the dissenting opinions. Furthermore, 
to some extent, the effort has been made to present the 
reasoning employed in their support. This has been 
done not solely because of the very great importance 
of the constitutional questions involved, but also be- 
cause, as a matter of fact, there is some ground for 
believing that the judgments rendered have by no 
means definitely fixed the law upon these points. 
Therefore it is quite desirable that we should be sup- 
plied with the principle upon which, possibly, if not 
probably, the doctrine finally accepted will be founded. 

One important point is to be noticed in the very 
beginning of a criticism of the prevailing opinions in 
these cases. As will have been seen from the account 
that has been given of the case, though there was a 
judgment concurred in by five justices in Downes v. 
Bidwell, namely, the judgment that the tax uniformity 
clause was not applicable to the island Porto Rico, one 
of these five justices based his conclusion upon reason- 
ing that was repudiated both by the four justices who 
concurred in the judgment and by the four who dis- 
sented from it. There was therefore declared in that 
case no constitutional doctrine that received the ap- 
proval of a majority of the court. Moreover, the four 
justices who concurred with Justice Brown in the 
judgment that was rendered did so upon a principle 
that a clear majority of the court had just declared 
invalid in the case of De Lima v. Bidwell ; whereas the 

238 



STATUS OF TERRITORIES 



four dissenting^ justices based their opinion upon a 
principle which that case had held sound. ^ 

DISTRICT OF COLUMBIA 

The constitutional status of the district used as the 
seat of the Federal Government is almost exactly the 
same as that of the territories. In the case of Lough- 
borough V. Blake (5 Wh., 317), so often cited in the 
Insular Cases, Chief Justice Marshall emphatically 
declared, as we have already learned, that the District 
of Columbia was a part of the United States, and that 
in legislating for it Congress is restrained by the limi- 
tations constitutionally placed upon the exercise of its 
powers. The Downes case, however, has held this to 
be an erroneous dictum. 

As early as 1804, in Hepburn v. Ellzey (2 Cr., 445), 
it was held that the District of Columbia was not a 
State in the sense in which that word is used in the 
constitutional clause that gives to the federal courts 

1 Upon this point see the remarks of Professor J. W. Burgess 
in the "Political Science Quarterly," XVI (1901), p. 504. The 
opinion of this competent critic, himself a firm believer in im- 
perialism as a principle of Anglo-Saxon politics, is as follows : 
"The judgment in the Downes ease is . . . nothing but an 
arbitrary bit of patchwork. Its purpose is to satisfy a certain 
demand of fancied political expediency in the work of imperial 
expansion. It is based upon the narrowest possible view of that 
expediency; for I venture to affirm that in the prosecution of 
that policy the simple knowledge on the part of those to be made 
subject to it that the constitutional liberties of the great repub- 
lic were to be extended to them, as well as the powers extended 
over them, would be worth to us an army of a million of men." 

239 



THE AMERICAN CONSTITUTIONAL SYSTEM 

jurisdiction in suits between citizens of different 
States. 

In De Geofroy v. Riggs (133 U. S., 258) it was, how- 
ever, declared that the District was one of "the States 
of the Union" within the meaning of that term as used 
in an international agreement.^ 

The reasoning by which Marshall in the Lough- 
borough case found the District entitled to the protec- 
tion of the limiting clauses of the Constitution, was 
approved by the dissenting justices in the Downes v. 
Bidwell case, and repudiated by the majority justices. 
These latter, however, affirmed, as a matter of fact, 
that the protection of these constitutional limitations 
had been extended over the District by a specific act 
of Congress.^ 

1 This case is cited by Justice Brown in his opinion in the ease 
of Downes v. Bidwell, as illustrating the broader, international use 
of the term " United States." 

2 16 " Statutes at Large/' chap. 62, sec. 34. 



240 



CHAPTER XV 

CITIZENSHIP 

The subject of citizenship in the United States is 
one the exact legal definition of which is not yet set- 
tled, notwithstanding the fact that an amendment to 
the Constitution has been adopted, the chief purpose 
of which was to effect this. 

As adopted, the federal Constitution contained no 
definition of citizenship. Impliedly, however, it recog- 
nized a state citizenship in that clause which pro- 
vides that "citizens of each State shall be entitled to 
all the privileges and immunities of citizens in the 
several States. ' ' It also would seem to have recognized 
a federal citizenship in the clauses providing that the 
President shall be ' ' a natural born citizen, or a citizen 
of the United States at the time of the adoption of 
this Constitution;" that Senators and Representatives 
shall have been nine and seven years respectively 
citizens ''of the United States;" and that Congress 
shall have the power to pass laws regulating the natu- 
ralization of aliens. 

The relationship between these two citizenships,— 
state and national,— however, the Constitution did 
not expressly determine. 

By some it was asserted that there was no federal 
16 241 



THE AMERICAN CONSTITUTIONAL SYSTEM 

citizenship apart from state citizenship — that one be- 
came a citizen of the United States only by being or 
becoming a citizen of one of the States. Calhoun has 
been credited with holding this view.^ This, however, 
is not quite correct. In a speech delivered in the 
United States Senate in 1833 upon the then pending 
Force Bill, he declared : " If by a citizen of the United 
States he [Senator Clayton] means a citizen at large, 
one whose citizenship extends to the entire geograph- 
ical limits of the country without having a local 
citizenship in some State or territory,^ a sort of a 
citizen of the world, all I have to say is that such a 
citizen would be a perfect nondescript; that not a 
single individual of this description can be found in 
the entire mass of our population. . . . Every citizen 
is a citizen of some State or territory, and as such, 
under an express provision of the Constitution, is en- 
titled to all the privileges and immunities of citizens 
in the several States; and it is in this and no other 
sense that we are citizens of the United States." 

From this it will be seen that Calhoun recognized 
not only a state citizenship but a territorial citizenship, 
which latter of course could be derived only from a 
federal source. What he and others of the States' 
Rights school held was that as between state citizen- 
ship and federal citizenship, the former was the more 
fundamental ; that, in other words, the latter was de- 
rived from the former. The fact of the federal control 
of naturalization Calhoun explained by alleging that 
that power was one which enabled Congress simply to 

iBrannon, "The Fourteenth Amendment," p. 17. 
2 Italics our own. 

242 



CITIZENSHIP 



remove the disabilities of foreign birth, the several 
States being left free to decide whether or not, when 
such disabilities had been removed from aliens resi- 
dent within their borders, they should be accepted by 
them as citizens. In 1832, however, in the case of 
Gassies v. Ballon (6 Pet., 761), this construction was 
declared incorrect by Chief Justice Marshall. "The 
defendant in error," said Marshall, "is alleged in 
the proceedings to be a citizen of the United States, 
naturalized in Louisiana and residing there. This is 
equivalent to an averment that he is a citizen of the 
United States. A citizen of the United States, residing 
in any State of the Union, is a citizen of that State." 

The whole question of the relation between state and 
federal citizenship came up for discussion and decision 
in the Dred Scott case (Scott v. Sandford, 19 How., 
393), decided in 185)^. Two of the questions involved "H 
in this case were, whether a State might make a negro 
one of its own citizens, and if so, whether such a one 
thereby necessarily became a citizen of the United 
States and as such entitled to the special privileges 
and immunities created by the Constitution. 

The majority of the court held that though the in- 
dividual States had full discretion as to whom they 
should admit to their own citizenship, they had not the 
power, by an exercise of this right, to endow with the 
privileges of federal citizenship those individuals who, 
at the time the Constitution was adopted, were held by 
law and general opinion not qualified, because of race, 
to become citizens. Negroes, it was declared, were of 
this class. "We must not confound," said Taney in 
his opinion, "the rights of citizenship which a State 

243 



THE AMERICAN CONSTITUTIONAL SYSTEM 

may confer within its own limits, and the rights of 
citizenship as a member of the Union. ... [A 
person] may have all the rights and privileges of a 
citizen of a State, and yet not be entitled to the rights 
and privileges of a citizen in any other States. . . . 
Each State . . . may confer them upon an alien or 
any one it thinks proper, or npon any class or de- 
scription of persons, yet he would not be a citizen in 
the sense in which that word is used in the Constitu- 
tion of the United States. . . . The rights which he 
would acquire would be restricted to the State which 
gave them. ... No State can, by naturalizing an 
alien, invest him with the rights and privileges secured 
to a citizen of a State under the Federal Government, 
although, so far as the State alone is concerned, he 
would undoubtedly be entitled to the rights of a citizen 
and clothed with all the rights and immunities which 
the constitution and law of the State attached to that 
character. ' ' 

From this doctrine that a citizen of a State, what- 
ever his class or condition, did not necessarily become 
a citizen of the United States, Justice Curtis dissented. 
National citizenship and state citizenship he held to 
apply to the same persons in all cases, thus, appar- 
ently, excluding from federal citizenship inhabitants 
of the territories. Furthermore, it would seem that 
he committed himself to the doctrine that state citizen- 
ship is the more fundamental as being the source 
whence federal citizenship is derived. "It is left to 
each State to determine," he said, "what free persons 
born within its limits shall be citizens of such State 
and therehy be citizens of the United States. . . . 

244 



CITIZENSHIP 



Among the powers unquestionably possessed by the 
several States was that of determining what persons 
should, and what persons should not, be citizens." 

In effect, then, the Dred Scott decision held that 
free negroes in the United States, though subjects 
of, that is, owing allegiance to, the United States, were 
not ''citizens" of the United States within the mean- 
ing of that provision of the Constitution which pro- 
vides the right of bringing suits in federal courts. 

In 1868 was adopted the Fourteenth Amendment 
which provides that ''All persons born or naturalized 
in the United States, and subject to the jurisdiction 
thereof, are citizens of the United States and of the 
State wherein they reside. ' ' 

The two main purposes of this declaration undoubt- 
edly were: (1) the assertion that national citizenship 
is primary and paramount to state citizenship; and 
(2) the granting of both national and state citizen- 
ship to the negro. That national citizenship was to be 
paramount is shown not only in the words just quoted, 
but in the further provision of the amendment that 
"no State shall make or enforce any law which shall 
abridge the privileges and immunities of citizens of 
the United States, nor shall any State deprive any 
person of life, liberty or property without due process 
of law ; nor deny to any person within its jurisdiction 
the equal protection of the laws." 

In the Slaughter House Cases (16 Wall., 36) it was 
held, in effect, that this amendment did not have the 
effect of absorbing state citizenship and its appurte- 
nant rights in the national citizenship, but that the 
two remain as distinct as before. Upon this point the 

245 



THE AMERICAN CONSTITUTIONAL SYSTEM 

court declared: ''It [the clause defining citizenship] 
declares that persons may be citizens of the United 
States without regard to the citizenship of a particular 
State, and it overturns the Dred Scott decision by 
making all persons born within the United States and 
subject to its jurisdiction citizens of the United States. 
That its main purpose was to establish the citizenship 
of the negro can admit of no doubt. The phrase 'sub- 
ject to its jurisdiction' was intended to exclude from 
its operation children of ministers, consuls, and citi- 
zens or subjects of foreign States born within the 
United States.^ The next observation is more impor- 
tant. ... It is, that the distinction between citizen- 
ship of the United States and citizenship of a State 
is clearly recognized and established. Not only may 
a man be a citizen of the United States without being 
a citizen of a State, but an important element is neces- 
sary to convert the former into the latter. He must 
reside within the State to make him a citizen of it, 
but it is only necessary that he should be born or 
naturalized in the United States to be a citizen of the 
Union. It is quite clear, then, that there is a citizen- 
ship of the United States, and a citizenship of a State, 
which are distinct from each other, and which depend 
upon different characteristics or circumstances in the 
individual." 

In the above it will be noticed that the court de- 
clares that an additional element is necessary to con- 

1 This interpretation of the phrase " subject to its jurisdiction " 
was a mere dictum of the court, the point not being involved in 
the suit at bar. Moreover, as we shall see, post, p. 248, it was an 
incorrect dictum so far as regards persons born within the United 
States of parents who are aliens. 

246 



CITIZENSHIP 



vert a federal citizen into a state citizen. This 
additional element, it should also be observed, is not 
one the giving or refusing of vv^hich is within the 
control of the State. By the mere act of taking up 
residence vi^ithin a State, w^hich that State cannot pre- 
vent, a federal citizen, ipso facto, becomes a citizen of 
the State. The State thus no longer has any power 
to determine who shall be or become its own citizens. 
The federal Constitution fixes that once for all. 

But though the States may not determine who shall 
constitute its citizen body, they still retain, as the de- 
cision in the Slaughter House Cases goes on to declare, 
a full authority, free from federal supervision and 
control, to decide what political privileges— as, for 
instance, the right to vote, or to hold office— shall ex- 
ist, and who shall be entitled to enjoy them. Thus, 
upon the one hand, federal and state citizenship does 
not entitle one, of right, to the suffrage or qualify him 
for public office. Upon the other hand, the States may 
grant, and in a number of cases have granted, these 
privileges to aliens who, though not naturalized, have 
declared their intention, according to the requirements 
of the national law regulating naturalization, of be- 
coming United States citizens. 

A State cannot prevent, as has been said, a federal 
citizen from becoming one of its own citizens. It is 
not certain, however, that it may not grant its own 
citizenship to one not a federal citizen, or even to one, 
as for instance a Mongolian, who, according to existing 
federal law, cannot become a federal citizen.^ This 
point is, however, of only academic interest, for whe- 

1 According to the existing laws of naturalization, only mem- 
bers of the white races and negroes may be naturalized. 

247 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ther made a state citizen or not, all the privileges of 
state citizenship may be given an alien. 

In the case of United States v. Wong Kim Ark (169 
IT. S., 649), decided in 1898, was determined the ques- 
tion whether, under the provisions of the Fourteenth 
Amendment, one is a citizen of the United States who 
is born in the United States of alien parents perma- 
nently domiciled therein. The determination of this 
point turned upon the question whether or not 
American law follows the English Common Law 
principle that birth within the territorial limits of a 
State makes one a citizen of that State, or accepts the 
rule followed by most European States that citizenship 
is determined by that of the parents. The Supreme 
Court declared that the first is the correct American 
principle and that, therefore, the Chinaman, defen- 
dant in the suit being decided, was an American citi- 
zen. The acceptance of this doctrine, it was held, does 
not prevent the United States from providing that 
children born abroad of American citizens shall be 
considered citizens of the United States.^ 

Regarding the phrase ''subject to the jurisdiction 
1 " Persons heretofore born, or hereafter to be born, out of the 
limits and jurisdiction of the United States, whose fathers were 
or shall be at the time of their birth citizens of the United States, 
shall be deemed and considered and are hereby declared to be 
citizens of the United States : provided, however, that the rights 
of citizenship shall not descend to persons whose fathers never 
resided in the United States." Law enacted in 1855. "Revised 
Statutes," Sec. 1993. The acceptance by some nations of par- 
entage and by others of place of birth as determinant of citizen- 
ship, as also the assertion by some nations and the denial by 
others as of a right of expatriation, gives rise in many eases to a 
double citizenship. Thus, for example, the child born in the 

248 



CITIZENSHIP 



thereof" the court said: ''The real object of the Four- 
teenth Amendment of the Constitution, in qualifying 
the words, 'all persons born in the United States' by 
the addition 'and subject to the jurisdiction thereof,' 
would appear to have been to exclude, by the fewest 
and fittest words (besides children of members of the 
Indian tribes, standing in a peculiar relation to the 
National Government, unknown to the common law), 
the two classes of cases,— children born of alien ene- 
mies in hostile occupation, and children of diplomatic 
representatives of a foreign State,— both of which, as 
has already been shown, by the law of England and by 
our own law, from the time of the first settlement of 
the English colonies in America, had been recognized 
exceptions to the fundamental rule of citizenship by 
birth within the country." 

United States of citizens of a State that holds that the citizen- 
ship of the child is fixed by that of its parents, is claimed as a 
citizen both by the United States and by the foreign State whose 
citizens the parents are. A similar result follows when by natu- 
ralization American citizenship is conferred upon the subject of 
a foreign State that does concede to its subjects the right of ex- 
patriation. 



249 



CHAPTER XVI 

THE POLITICAL STATUS OF INDIANS 

The status of the Indians, to which allusion is made 
in the foregoing quotation, needs explanation, not only 
because of its peculiar character, but because the con- 
stitutional principles that have been declared to gov- 
ern the Federal Government in its control of these 
aborigines may find an application in the near future 
in the government by the United States of the less 
civilized tribes inhabiting its newly acquired insular 
possessions. 

The only references made by the Constitution to the 
Indians are in the provisions that "Indians not taxed" 
shall not be counted in determining the number of 
Representatives to which a State shall be entitled 
(Art. I, Sec. 2) ; and that Congress shall have the 
power to regulate -commerce with Indian tribes (Art. 
I, Sec. 8, Clause 3). 

Since the adoption of the present Constitution, In- 
dians, resident within the boundaries of the United 
States, while considered as absolutely and exclusively 
subject to its sovereignty so far as concerns both for- 
eign powers and the individual States of the Union, 
have nevertheless been treated for many purposes as 
constituting independent nations or tribes under the 

250 



THE POLITICAL STATUS OF INDIANS 

protection of the Federal Government, and therefore 
to be dealt with by means of treaties rather than by 
statutes.^ Until recently they have been allowed to 
govern themselves in most matters by their own tribal 
governments. 

In Worcester v. Georgia (6 Pet., 515), decided in 
1832, Chief Justice Marshall said: "The treaties and 
laws of the United States contemplate the Indian ter- 
ritory as completely separated from that of the States, 
and provide that all intercourse with them shall be 
carried on exclusively by the government of the 
Union." Speaking of the Indians over whose lands 
the State of Georgia had attempted to exercise juris- 
diction," he said: ''The Cherokee Nation, then, is a 
distinct community, occupying its own territory, with 
boundaries accurately described, in which the laws of 
Georgia can have no force, and which the citizens 
of Georgia have no right to enter, but with the assent 
of the Cherokees themselves, or in conformity with 
treaties, and with the acts of Congress. The whole in- 
tercourse between the United States and this nation is, 
by our Constitution and laws, vested in the govern- 
ment of the United States." 

In 1884 in the case of Elk v. Wilkins (112 U. S., 94) 
the question arose whether an Indian, born a member 
of one of the Indian tribes within the United States, 
became a citizen of the United States under the Four- 

1 In its control of the Indians, whether by means of statutes 
or treaties, Congress has never been held bound by any of the 
limiting clauses of the Constitution. 

2 These lands were within the territorial limits of the State of 
Georgia. 

251 . 



THE AMERICAN CONSTITUTIONAL SYSTEM 

teenth Amendment, by reason of his birth within the 
United States, and of his afterward voluntarily sepa- 
rating himself from his tribe and taking up a resi- 
dence among white citizens. In declaring that he did 
not, the Court said : 

''Under the Constitution of the United States, as 
originally established, 'Indians not taxed' were ex- 
cluded from the persons according to whose numbers 
representatives and direct taxes were apportioned 
among the several States; and Congress had and ex- 
ercised the power to regulate commerce with the In- 
dian tribes, and the members thereof, whether within 
or without the boundaries of one of the States of the 
Union. The Indian tribes, being within the territorial 
limits of the United States, were not, strictly speaking, 
foreign States; but they were alien nations, distinct 
political communities, with whom the United States 
might and did deal as they saw fit, either through 
treaties made by the President and Senate, or through 
acts of Congress in the ordinary forms of legislation. 
The members of those tribes owed immediate allegiance 
to their several tribes and were not part of the people 
of the United States. They were in a dependent con- 
dition, a state of pupilage, resembling that of a ward 
to his guardian. Indians and their property, exempt 
from taxation by treaty or statute of the United 
States, could not be taxed by any State. General acts 
of Congress did not apply to Indians, unless so ex- 
pressed as clearly to manifest an intention to include 
them. . . . The alien and dependent condition of the 
members of the Indian tribes could not be put off at 
their own will, without the action of, or assent of the 

252 



THE POLITICAL STATUS OF INDIANS 

United States, they were never deemed citizens of the 
United States, except under explicit provisions of 
treaty or statute to that effect, either declaring a cer- 
tain tribe, or such members of it as chose to remain 
behind on the removal of the tribe westward, to be 
citizens, or authorizing individuals of particular tribes 
to become citizens on application to a court of the 
United States for naturalization, and satisfactory 
proof of fitness for civilized life. . . . Indians born 
within the territorial limits of the United States, mem- 
bers of, and owing immediate allegiance to, one of the 
Indian tribes (an alien, though dependent power), al- 
though in a geographical sense born in the United 
States, are no more 'born in the United States and 
subject to the jurisdiction thereof,' within the mean- 
ing of the first section of the Fourteenth Amendment, 
than the children of subjects of any foreign govern- 
ment born within the domain of that government, or 
the children, born within the United States, of ambas- 
sadors or other public ministers of foreign nations. . . . 
Such Indians, then, not being citizens by birth, can 
only become citizens in the second way mentioned in 
the Fourteenth Amendment, by being 'naturalized 
in the United States' by or under some treaty or 
statute. ' ' 

Since the decision of the Supreme Court in Elk v. 
Wilkins a number of acts of Congress have been passed 
which have had the effect of destroying, to a very con- 
siderable extent, the autonomous tribal governments 
of the Indians and of subjecting them to the legisla- 
tive control of Congress instead of to that of the 
treaty-making power. The way was opened to this 

253 



THE AMERICAN CONSTITUTIONAL SYSTEM 

change by a "rider" attached to an appropriation bill 
in 1891 which provided that "No Indian nation or 
tribe within the territory of the United States shall be 
acknowledged or recognized as an independent nation, 
tribe or power with whom the United States may 
contract by treaty. ' ' 

By an act passed in 1885 the federal courts were, 
for the first time, given a considerable jurisdiction 
over crimes committed upon reservations by Indians 
upon Indians. The constitutionality of this act was 
attacked upon the ground that it was not within the 
legislative power of Congress thus to interfere with 
the internal legal affairs of Indians still maintaining 
tribal governments. The Court held, however, in 
United States v. Kagama (118 U. S., 375), that what- 
ever political and legal freedom was enjoyed by the 
Indians was by way of permission or cession from the 
Federal Government, and was, therefore, subject to 
curtailment or complete withdrawal by that power. 
' ' These Indian tribes, ' ' it declared, ' ' are the wards of 
the Nation. They are communities dependent on the 
United States, dependent largely for their daily food, 
dependent for their political rights. They owe no 
allegiance to the States and receive from them no pro- 
tection." 

To this decision the objection was urged, and, it 
would seem, with considerable force, that since the 
Indians are no longer permitted to enjoy tribal auton- 
omy, and are no longer treated by the Federal 
Government as independent communities which are 
to be dealt with by treaties instead of statutes, there 
disappears the constitutional justification for denying 

254 



THE POLITICAL STATUS OF INDIANS 

to the States the control of such of them as live within 
their territorial limits. To this the Supreme Court 
had no better answer to give than expediency— always 
a poor, if not an absolutely invalid argument. "The 
power of the General Government over these remnants 
of a race once powerful, now weak and diminished in 
numbers," it said, "is necessary to their protection, as 
well as to the safety of those among whom they 
dwell." Upon this argument the exclusive jurisdic- 
tion of the Federal Government over the negroes might 
be justified. 

At various times during past years, Congress has 
declared, as to particular Indian tribes, that their 
lands should be divided and held in severalty by their 
respective members, and that, thereupon, such Indians 
should become citizens of the United States, and pass 
immediately from the exclusive jurisdiction of the 
Federal Government to that of the States in which 
they reside. In 1887, by the General Land in Sev- 
eralty Law, known as the ' ' Dawes Act, ' ' the President 
was given the power to apply this process to practi- 
cally every Indian reservation in the country. The 
peculiarity of these acts is, it will be observed, that it 
makes citizens of Indians against their will. The 
action is taken at the discretion of the President and 
citizenship is the result.^ 

1 The Dawes Act also provides for allotments of land and cit- 
izenship to Indians who may wish to settle upon the public lands 
of the United States. It also declares that all Indians forsaking 
their tribal life and adopting the habits of civilized life shall be- 
come citizens. Without this express statutory provision, as was 
decided in Elk r. Wilkins, citizenship could not thus be obtained. 

255 



THE AMERICAN CONSTITUTIONAL SYSTEM 

For legislation further subjecting the Indians to the control of 
the federal courts, see the act of January 1, 1898. 

The peculiar status of those Indians who have not become 
citizens is illustrated in the form of a letter of protection issued, 
in lieu of a passport, to those traveling abroad. The following 
is a letter issued by our consul at Odessa, the form of which has 
been approved by the State Department : 

' ' To whom it may concern : 

"The bearer of this document is a North American Indian 
whose name is Hampa. This Indian is a ward of the United 
States, and is entitled to the protection of its consular and 
other officials. He is not, however, entitled to a passport, as he 
is not a citizen of the United States. This consulate has the 
honor to request the Eussian authorities to grant Hampa all 
necessary protection during his stay in Russia, and grant him 
permission to depart when he requires it. 



Consul." 



256 



CHAPTER XVII 

THE CITIZENSHIP OP INHABITANTS OF CEDED TERRITORIES 

Whether or not the inhabitants of territories ceded 
by one nation to another necessarily have, according 
to the principles of International Law, the option of 
becoming citizens of the annexing State, or retaining 
their old citizenship, is a point upon which Inter- 
national Law writers do not seem to be fully agreed. 
Rivier, for instance, in his recent work, ^'Principes du 
Droit des Gens," declares that they have not— that 
unless expressly provided otherwise, they become, 
nolens volens, the subjects of the power to which their 
territory is united. Other text-book writers. West- 
lake and Halleck, for instance, claim that the treaty 
of cession being silent upon this point, an option 
exists.^ Halleck declares: "The transfer of territory 
establishes its inhabitants in such a position toward 
the new sovereignty that they may elect to become, or 
not to become, its subjects. Their obligations to the 
former government are canceled, and they may or 

1 This right of option as regards citizenship is not to be con- 
founded with the right, by some alleged to exist, of the inhabi- 
tants to decide whether or not they will consent to a transfer of 
sovereignty over their territory to another power. Such a right 
has never been accepted by International Law writers, nor rec- 
ognized by the United States in any of the annexations by it 
of new territories. 

17 257 



THE AMERICAN CONSTITUTIONAL SYSTEM 

may not, become the subjects of the new government, 
according to their own choice. If they remain in the 
territory after this transfer, they are deemed to have 
elected to become its subjects, and thus to have con- 
sented to the transfer of their allegiance to the new 
sovereignty. If they leave, sine animo revertendi,they 
are deemed to have elected to continue aliens to the 
new sovereignty. The status of the inhabitants of the 
conquered and transferred territory is thus deter- 
mined by their own acts. This rule is the most just, 
reasonable, and convenient which could be adopted. 
It is reasonable on the part of the conqueror, who is 
entitled to know who become his subjects and who 
prefer to continue aliens; it is very convenient for 
those who wish to become the subjects of the new 
State, and is not unjust toward those who determine 
not to become its subjects. According to this rule, 
domicile, as understood and defined in public law, 
determines the question of transfer of allegiance, or 
rather, is the rule of evidence by which that question 
is to be decided." 

That, in the absence of treaty stipulations to the 
contrary, the citizenship of the inhabitants of ceded 
territory is to be determined by the rule thus stated, is 
generally admitted by American International Law 
writers, and has been more than once declared by the 
United States Supreme Court. In American Insur- 
ance Co. V. Canter, the Court said: "The same act 
which transferred their territory transfers the allegi- 
ance of those who remain in it;" and in Boyd v. 
Thayer (143 U. S., 135) it was declared that 'Hhe 
nationality of the inhabitants of territory acquired by 

258 



CITIZENSHIP IN TERRITORIES 



conquest or cession becomes that of the government 
under whose dominion they pass, subject to the right 
of election on their part to retain their former na- 
tionality by removal or otherwise as may be pro- 
vided." 

In all the treaties entered into by the United States 
whereby territory was acquired, prior to that of 1899 
with Spain, it was provided either that the inhabitants 
of the ceded territories remaining therein should be 
admitted as soon as possible to the enjoyment of all 
the rights, advantages, and immunities of citizens of 
the United States, or that they should be "incorpo- 
rated in the Union of the United States," or both. It 
cannot, however, be said with certainty as has been 
maintained by some, that it was due to these provisions 
that the inhabitants of the ceded territories were 
collectively naturalized, for this point has never been 
squarely passed upon by the Supreme Court. The un- 
doubted purpose and the probable legal effect of these 
provisions was only to create an obligation on the part 
of the United States not to discriminate civilly against 
these peoples, and, when the conditions should war- 
rant, to confer upon them full political privileges. 
The determination when this time had arrived was left 
to the discretion of Congress, Provisions similar to 
those of which we have been speaking are almost 
always inserted by all nations in treaties of cession at 
the instance of the ceding power, as a mere matter of 
equity, it being but just, in handing over to the con- 
trol of another power citizens of its own, that, as 
far as possible, a State should obtain a guarantee that 
they shall not be civilly or politically oppressed. 

259 



THE AMERICAN CONSTITUTIONAL SYSTEM 

By these treaties of cession entered into by the 
United States, the inhabitants of the ceded territories 
did become, however, United States citizens under the 
general rule quoted above, because those treaties con- 
tained no stipulations to the contrary. 

In the treaty of peace with Spain which provided 
for the cession to the United States of Porto Rico, 
Guam, and the Philippines, we find for the first time 
appearing a provision affirming, in effect, that the 
cession of the islands was not to operate as a naturali- 
zation of their native inhabitants, but that the deter- 
mination of their civil rights and political status was 
to be left to the subsequent judgment of Congress. 
Spanish subjects, natives of the Iberian Peninsula, but 
resident in the islands, were, however, given the right 
to elect whether or not they would retain their old 
citizenship or become American subjects. The pro- 
visions of the treaty upon these points were as follows : 
"Spanish subjects, natives of the Peninsula [of Spain] 
residing in the territory over which Spain by the pres- 
ent treaty relinquishes or cedes her sovereignty, may 
remain in such territory or may remove therefrom, re- 
taining in either event all their rights of property, in- 
eluding the right to sell or dispose of such property 
or of its proceeds; and they shall also have the right 
to carry on their industry, commerce, and professions, 
being subject in respect thereof to such laws as are 
applicable to other foreigners. In case they remain in 
the territory they may preserve their allegiance to 
the Crown of Spain by making, before a court of 
record, within a year from the date of the exchange of 
ratifications of this treaty, a declaration of their de- 

260 



CITIZENSHIP IN TERRITORIES 



cision to preserve such allegiance ; in default of which 
declaration they shall be held to have renounced it and 
to have adopted the nationality of the territory in 
w^hich they may reside. 

''The civil right and political status of the native 
inhabitants of the territories hereby ceded to the 
United States shall be determined by Congress." 

Relative to the effect of this last treaty provision, 
a question presents itself, which has not yet been 
passed upon by the Supreme Court. This is, whether 
it is within the constitutional competence of the treaty- 
making power to confer upon Congress the right to 
determine whether or not the inhabitants of territories 
coming under the sovereignty of the United States 
shall become its citizens. The Constitution declares 
that the acts of the treaty-making power, as well as 
those of the federal legislature, shall be the supreme 
law of the land. The validity of both are, however, 
dependent upon their consonance with the require- 
ments of the Constitution. If, then, according to that 
instrument, there may not be subjects of the United 
States who are not also its citizens, no treaty can give 
to the law-making branch the power to treat any per- 
sons as such. In the Insular Cases it was held that the 
islands obtained from Spain have not been incorpo- 
rated into the ''United States." Their inhabitants 
have not been naturalized by statute and the treaty 
with Spain expressly refuses to them citizenship. The 
whole question of their civil status thus depends upon 
whether or not they are citizens according to the pro- 
vision of the Fourteenth Amendment which declares 
that "all persons born or naturalized in the United 

261 



THE AMERICAN CONSTITUTIONAL SYSTEM 

States, and subject to the jurisdiction thereof, are citi- 
zens of the United States and of the State wherein 
they reside." That is to say, it will depend upon 
whether the term ''United States," as employed in 
this amendment, will be construed to exclude or in- 
clude "unincorporated" territories. 

In the case of Gonzales v. Williams (24 Sup. Ct. 
Reporter, 177), decided January 4, 1904, the Supreme 
Court held that inasmuch as, since the treaty of ces- 
sion with Spain, the island of Porto Rico had ceased 
to be foreign territory, natives living there in 1899 are 
not ''aliens" within the meaning of that term as em- 
ployed in the act of Congress providing for the deten- 
tion and deportation of alien immigrants likely to be- 
come public charges. Whether or not such persons, 
though subject to the sovereignty of the United States, 
are its citizens within the narrower constitutional 
sense, so long as the island remains unincorporated 
into the United States, was not passed upon. 

As regards those of the natives of the Philippine 
Islands, who are ^till uncivilized and maintain tribal 
relations, it may be that the courts will construe their 
status to be similar to that of the Indian tribes in the 
United States. 



262 



CHAPTER XVIII 



ADMISSION OF NEW STATES 



The process of admitting new States to the Ameri- 
can Union is a comparatively simple process and but 
few constitutional questions have arisen in connection 
w4th it. The constitutional clause governing the sub- 
ject reads as follows: ''New States may be admitted 
by the Congress into this Union; but no new State 
shall be formed or erected within the jurisdiction of 
any other State, nor any State be formed by the junc- 
tion of two or more States or parts of States, without 
the consent of the legislatures of the States concerned 
as well as of Congress" (Art. IV, Sec. 3). It will thus 
be seen that nothing is said as to the conditions that 
must be met by a given territory before it may claim, 
or Congress be obligated to grant, admission to the 
Union as a State. The whole matter is left absolutely 
to the discretion of Congress. There can be no ques- 
tion but that at the time of the adoption of the Con- 
stitution the idea was generally held that all non-state 
territory held or to be held by the United States was 
to be regarded as material from which new States were 
to be created as soon as population and material de- 
velopment should warrant. But no attempt was made 
to force the hand of Congress under circumstances 

263 



THE AMERICAN CONSTITUTIONAL SYSTEM 

that could not be foreseen by defining in the Constitu- 
tion itself the conditions under which statehood should 
be accorded. But one limitation is laid down, and that 
impliedly, and one that relates rather to the status of 
new States after admission, than to the process of ad- 
mission itself. This is that the new Commonwealths, 
when received into constitutional fellowship with the 
older members of the Union, shall stand upon an ex- 
actly equal footing with them. The Constitution does 
not expressly declare this, but, without distinguishing 
between the original and the new States, defines the 
political privileges which the States are to enjoy, and 
declares that all powers not granted to the United 
States shall be considered as reserved ''to the States." 
From this it almost irresistibly follows that Congress 
has not the right to provide that certain members of 
the Union, possessing full statehood, shall have their 
constitutional competences in any manner less than 
that of their sister States. According to this, then, 
though Congress may exact of territories whatever 
conditions it sees fit as requirements precedent to their 
admission as States, when admitted as such, it cannot 
deny to them any of the privileges and immunities 
which the other Commonwealths enjoy.^ 

This principle of the equality of States had its ori- 
gin before the adoption of the Constitution itself. In 
the acts of cession by the several States by which the 
old Confederacy obtained the control of the Northwest 
Territory, it was provided that from this vast area new 
States should, from time to time, be organized, w^hich 

1 See Pollard's Lessee v. Hagan, 3 How., 212; Strader v. Gra- 
ham, 10 How., 82; Weber v. Harbor Commissioners, 18 Wall., 57. 

264 



ADMISSION OF NEW STATES 



should be admitted to the Confederacy with the same 
sovereign rights enjoyed by the other States. 

The famous Northwest Ordinance of 1787, reenacted 
by the Congress of the United States in 1789, after 
laying down the general conditions upon which state- 
hood was to be accorded, declared that the States, so 
admitted, should be ''on an equal footing with the 
original States in all respects whatever." 

Notwithstanding, however, this requirement of 
equality. Congress at an early date began the practice 
of exacting from would-be States various promises by 
the terms of which they were to hold themselves bound 
after their admission to the Union and until Congress 
should release them. Thus, for instance, beginning in 
3^ 180^ with Ohio, the first State formed from the North- 
west Territory, it was demanded by Congress that that 
State, when admitted, should pass an ordinance, ir- 
revocable without the consent of Congress, not to tax 
for five years all public lands sold by the United 
States; and a requirement substantially similar was 
demanded of many of the States later formed. When 
Missouri was admitted in 1821 it was required to de- 
clare that its constitution should never be so construed 
as to permit its legislature to pass a law excluding 
citizens of other States from the enjoyment of any of 
the privileges and immunities granted them by the 
federal Constitution.^ 

Beginning with the admission of Nevada in 1864, 
the promises exacted of territories seeking admission 

1 A superfluous requirement, for with or without such a prom- 
ise, a State is, and was then, constitutionally unable to deprive 
any one of rights granted by the federal Constitution. 

265 



THE AMERICAN CONSTITUTIONAL SYSTEM 

as States assumed a more political character. Of 
Nevada it was required that her constitution should 
harmonize with the Declaration of Independence and 
that the right to vote should not be denied persons on 
account of their color. Of Nebraska, admitted in 
1867, it was demanded that there should be no denial 
of the franchise or any other right on account of race 
or color, Indians excepted. Of the States that had at- 
tempted secession, still more radical were the require- 
ments precedent to the granting to them of permission 
again to enjoy the other rights which they had for the 
time being forfeited. Of all of them it was required 
that there should be, by their laws, no denial of the 
right to vote except for crime ; and of three, that ne- 
groes should not be disqualified from holding office, or 
be discriminated against in the matter of school privi- 
leges.^ Finally, Utah, when admitted as a State in 
io 189^, was required by Congress by the Enabling Act 
to make ''by ordinance irrevocable without the con- 
sent of the United States and the people of the United 
States, provisions for perfect religious toleration and 
for the maintenance of public schools free from sec- 
tarian control ; and that polygamous or plural mar- 
riages are forever prohibited." 

In two comparatively recent cases, the Supreme 
Court has emphatically declared that, after becoming 
a member of the Union, a State is not restrained by 
political limitations exacted of it at the time of, and as 
a condition precedent to, its admission to the Union 

1 By the adoption of the Fourteenth and Fifteenth Amend- 
ments, some of these limitations have been made applicable to 
all the States and thus an equality, as to them, created. 

266 



ADMISSION OF NEW STATES 



as a State. In Escanaba v. Lake Michigan Transpor- 
tation Co. (107 U. S., 678) the Court declared, rela- 
tive to certain limitations placed upon the governing 
powers of Illinois while in a territorial condition : 
"Whatever the limitation upon her powers as a gov- 
ernment whilst in a territorial condition, whether 
from the Ordinance of 1789 or the legislation of Con- 
gress, it ceased to have any operative force, except as 
voluntarily adopted by her after she became a State 
of the Union. On her admission, she at once became 
entitled to and possessed of all the rights of dominion 
and sovereignty which belonged to the original States. 
She was admitted and could be admitted only on the 
same footing with them." And in Bolln v. Nebraska 
(176 U. S., 83) it was declared : "This Court has held 
in many cases that, whatever be the limitations upon 
the power of a territorial government, they cease 
to have any operative force, except as volun- 
tarily adopted after such territory has become a 
State of the Union. Upon the admission of a State it 
becomes entitled to and possesses all the rights 
of dominion and sovereignty which belong to the 
original States, and, in the language of the act of 1867 
admitting the State of Nebraska, it stands 'upon an 
equal footing with the original States in all respects 
whatsoever.' " 

In the foregoing cases reference was had, as ap- 
pears from the quotations, to States created out of 
territories. There would seem to be, however, no 
reason why the same doctrine should not be applied 
to the political limitations exacted of a number of 
the southern States at the time of their readmission 

267 



THE AMERICAN CONSTITUTIONAL SYSTEM 

to full constitutional privileges after the period of 
Civil War and Reconstruction.^ 

In the case of Stearns v. Minnesota (179 U. S., 223) , 
it was held, however, that a Commonwealth, at the time 
of its admission, or at any other time, might enter into 
compacts as to property rights with the United States, 
which would continue binding upon it. Relative to a 
covenant required of and entered into by Minnesota 
at the time of her admission as a State not to tax 
land belonging to the United States, or to tax non- 
resident higher than resident purchasers of it, the 
Court said: "That these provisions of the enabling 
act and the Constitution [of Minnesota] in form at 
least, made a compact between the United States and 
the State, is evident. In an inquiry as to the validity 
of such a compact this distinction must at the outset 
be noticed. There may be agreements or compacts at- 
tempted to be entered into between the States, or be- 
tween a State and the Nation, in reference to 
political rights and obligations, and there may 
be those solely in reference to property belong- 
ing to one or the other. That different considera- 
tions may underlie the question of the validity of 
these two kinds of agreements is obvious. It has often 
been said that a State admitted into the Union enters 
therein in full equality with all the others, and such 
equality may forbid any agreement or compact limit- 
ing or qualifying political rights and obligations; 
whereas, on the other hand, a mere agreement in ref- 
erence to property involves no question of equality of 

1 A case invoMng this point has recently been argued before 
the Supreme Court, and has not yet [1904] been decided. 

268 



ADMISSION OF NEW STATES 



status but only of the power of a State to deal with 
the Nation or with any other State in reference to 
such property. The case before us is one involving 
simply an agreement as to property between a State 
and the Nation. That a State and the Nation are com- 
petent to enter into an agreement of such a nature 
with one another has been affirmed in past decisions 
of this court, and that they have been frequently made 
in the admission of new States, as well as subsequently 
thereto, is a matter of history." 

As has been seen, the Constitution does not attempt 
to fix the modus operandi in which new members are 
to be admitted into the Union. It does not even say 
whether they are to be formed from territory already 
under its sovereignty, and in one instance, that of 
Texas, a new State was received by the direct process 
of incorporating, by a joint resolution of Congress, a 
foreign, independent State. In all other cases, how- 
ever, new States have been formed from areas already 
belonging to the United States and organized as terri- 
tories. 

The usual process by which these territories obtain 
statehood is as follows : The people of a territory peti- 
tion Congress to grant them statehood. If that body 
is favorably disposed, a so-called "enabling act" is 
passed, authorizing the framing of a state constitution, 
prescribing the manner in which it shall be framed; 
and laying down certain requirements that must be 
met. All these conditions having been met, a resolu- 
tion reciting this fact is passed by Congress, and the 
territory declared a State and admitted as such into 
the Union. In some cases the final step in the process 

269 



THE AMERICAN CONSTITUTIONAL SYSTEM 

has been a Proclamation issued by the President in 
obedience to the direction of Congress. 

The above has been the usual and regular process. 
In not a few instances, however, the inhabitants of 
territories have met in conventions and framed con- 
stitutions without first obtaining the authorization of 
Congress. The acceptance, however, by that body, of 
the instrument framed has been considered sufficient 
to validate the proceeding. 

There has been some little constitutional speculation 
as to whether the decisive, creative act in the bringing 
into existence of a new State is the Resolution of Con- 
gress approving the constitution that has been drawn 
up and declaring the former territory one of the 
States of the Union, or whether the vivifying force is 
derived from the constituent act of the people of the 
territory in framing and adopting their state constitu- 
tion. The latter is the view most acceptable to the 
States' Rights school.^ It would seem to be sufficiently 
plain, however, that the former is the correct doctrine ; 
for there can be no question but that it lies within the 
power of Congress arbitrarily to refuse its approval to 
a constitution that has been framed by the people of 
a territory strictly in accordance with the require- 

1 In Brownson's "American Republic," premising that the en- 
trance of territories into the Union as States is the free act of 
the peoples of the respective territories, the argument was made 
that the States of the Southern Confederacy, by their ordinances 
of secession, in effect annulled these acts, and thus, ipso facto, rele- 
gated themselves to the status of territories, and as such came 
under the complete control of Congress for that body to " recon- 
struct" their governments as it should see fit, and readmit them 
as States, and upon such terms, as it should approve. 

270 , 



ADMISSION OF NEW STATES 



ments of the Enabling Act. The final, and therefore 
decisive step, has thus to be taken by the Federal Gov- 
ernment. 

This doctrine has, indeed, received judicial sanction 
at the hands of the United States Supreme Court in 
its decision in the case of Scott v. Jones (5 How., 
343).^ 

1 Cf. Jameson, "Constitutional Convention," Sec. 207; "Opin- 
ions of U. S. Attorney-General," II, 726; and speech of H. W. 
Davis, in Appendix to Vol. XXXVII of the "Congressional Globe," 
pp. 261-262. 



271 



CHAPTER XIX 

INTERSTATE RELATIONS 

In the chapters that have gone before there have 
been considered the constitutional relations which ex- 
ist between the federal government upon the one side 
and state governments upon the other. In order to 
complete the account of the American Constitutional 
System it will now be necessary to give a description 
of the relations which exist between the several States 
themselves. 

Except as otherwise specifically provided by the fed- 
eral Constitution, the States of the American Union, 
when acting within the spheres of government re- 
served to them, stand toward one another as indepen- 
dent sovereign States. The laws of one State have, ex 
propria vigors, no force, and its officials have no public 
authority, outside of its own boundaries.^ 

1 The general principles of interstate comity, that is, those 
principles that hold good in the field of the ''Conflict of Laws " 
or Private International Law, apply, miitis mutandiSj to the com- 
monwealth members of the American Union in precisely the 
same manner that they do to sovereign independent States. 
Even a brief presentation of these principles would be outside of 
the province of this work. " The rules of private international 
law are taken notice of by the courts just as are the general 
principles of the common law ; and the federal courts, like those 

272 



INTERSTATE RELATIONS 



This general principle of political and legal exclu- 
siveness, is, however, modified by the federal Constitu- 
tion in the following respects : 

1. " A person charged in any State with treason, felony, or 
other crime, who shall flee from justice, and be found in 
another State, shall on demand of the executive authority of 
the State from which he fled, be delivered up to be removed 
to the State having jurisdiction of the crime" (Art. IV, 
Sec. 2). As we have already learned, this constitutional 
provision has been construed to impose simply a moral obli- 
gation upon the States— not a legal obligation the perform- 
ance of which by the state authorities may be compelled by 
the Federal Government. 

2. " Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other 
State, and Congress may by general laws prescribe the man- 
ner in which such acts, records, and proceedings shall be 
proved and the effect thereof" (Art. IV, Sec. l).i 

of the States, when administrating justice within a State be- 
tween suitors entitled to bring suits therein, will recognize and 
be governed by them. But, like other rules of law, they are sub- 
ject to be varied and controlled by state legislation, and there 
may be and often is a general state policy upon some particular 
subject before which the rules of private international law 
which are opposed to it must give way." Cooley, '' Principles of 
Constitutional Law," p. 178. 

1 This Congress has done. By a law passed in 1790 ("Revised 
Statutes," Sec. 905), it is provided that " The acts of the legislature 
of any State or Territory, or of any country subject to the jurisdic- 
tion of the United States, shall be authenticated by having the 
seals of such State, Territory or country affixed thereto. The 
records and judicial proceedings of the courts of any State or 
Territory, or of any such country, shall be proved or admitted in 
any other court within the United States, by the attestation of 

18 273 



THE AMERICAN CONSTITUTIONAL SYSTEM 

3. " The citizens of each State shall be entitled to all privi- 
leges and immunities of citizens in the several States " (Art. 
IV, Sec. 2). 

The last two of these constitutional modifications of 
the interstate exclusiveness of the members of the 
American Union require some discussion. 

The provision that "full faith and credit s\all be 
given in each State to the public acts, records, and ju- 
dicial proceedings of every other State," means, that 
when, in any legal proceeding instituted in one State, 
there is involved a right that is evidenced by or has 
been recognized or created by a legislative act, record, 
or judicial proceeding of another State, it shall be rec- 
ognized and enforced. 

Thus, if a person after actual service of process 
upon a debtor obtain judgment against him in the 
courts of one State, he may bring suit upon that judg- 
ment against his debtor and attach his property in any 
other State, and in such suit the debtor may not at- 
tack the judgment upon its merits. He may deny that 
such a judgment exists, or question the jurisdiction of 
the court that rendered it, but, these pleas being over- 
ruled, he cannot further oppose the rendition of a new 
judgment against him upon the ground that the court 
that rendered the first decision against him erred 

the clerk, and the seal of the court annexed, if there be a seal, 
together with a certificate of the judge, chief justice, or pre- 
siding magistrate, that the said attestation is in due form. And 
the said records and judicial proceedings so authenticated, shall 
have such faith and credit given them in every court within the 
United States as they have by law and usage in the courts of 
the State from which they are taken." 

274 



INTERSTATE RELATIONS 



either at law or in its determination of the facts. The 
real effect of the constitutional provision is thus to 
establish a binding rule of evidence, rather than one of 
jurisdiction. A judgment rendered in one State can- 
not be treated as a judgment in another State, but It 
may serve as the indisputable evidence of a debt. 
Thus, referring to this constitutional clause and to the 
statute passed by Congress in pursuance of it, the Su- 
preme Court has said in Wisconsin v. Pelican Insur- 
ance Co. (127 U. S., 265): ''While they make the 
record of a judgment, rendered after due notice in one 
State, conclusive evidence in the courts of another 
State or of the United States, of the matter adjudged, 
they do not affect the jurisdiction either of the court 
in which the judgment is rendered or of the court in 
which it is offered in evidence. Judgments recovered 
in one State of the Union, when proved in the courts 
of another government, whether state or national, 
within the United States, differ from judgments recov- 
ered in a foreign country in no other respect than in 
not being reexaminable on their merits, nor impeach- 
able for a fraud in obtaining them, if rendered by a 
court having jurisdiction of the cause and of the par- 
ties. In the words of Justice Story : ' . . . The Consti- 
tution did not mean to confer any new power upon the 
States, but simply to regulate the effect of their 
acknowledged jurisdiction over persons and things 
within the territory. It did not make the judgments 
of other States domestic judgments to all intents and 
purposes, but only gave a general validity, faith, and 
credit to them as evidence. No execution can issue 
upon such judgments without a new suit in the tribu- 

275 



THE AMERICAN CONSTITUTIONAL SYSTEM 

rials of other States. And they enjoy not the right of 
priority or lien which they have in the State where 
they are pronounced, but that only which the lex fori 
gives to them by its own laws in their character of 
foreign judgments.' " 

The real force and meaning of this "full faith and 
credit" clause of the Constitution has been especially 
worked out in connection with the subject oT marriage 
and divorce and it will therefore be proper to state 
briefly the positions that the Supreme Court has as- 
sumed upon this point. 

Shortly stated, this court has held that one State is 
not obliged to recognize the validity of a decree of di- 
vorce granted by a court of another State unless that 
court had jurisdiction to grant it, and that such juris- 
diction depends upon the domicil of the parties. If 
the bona fide domicil of both of the parties, or of the 
husband only, is that of the State in which the divorce 
is granted, the decree is binding in every other State 
(Atherton v. Atherton, 181 U. S., 155). It is also 
similarly valid if the bona fide domicil of but the wife 
be in the State in which the decree is granted, if the 
wife has left the home of her husband because of mis- 
conduct upon his part, and notice actual or construc- 
tive (i. e., by publication or mailing of notice) of the 
beginning of the suit has been served upon him. A de- 
cree of divorce granted the husband by a court of the 
State in which he is domiciled, if proper notice of the 
beginning of the suit has been served upon the wife, is 
valid in other States whether or not he has in fact left 
his wife without good cause. This is because the mat- 
rimonial domicil is that of the husband, and the wife 

276 



INTERSTATE RELATIONS 



can obtain a different clomicil only in case of fault 
upon his part. Whether or not a state court has juris- 
diction to render a decree of divorce that will have ex- 
traterritorial effect where the domicil of the party 
plaintiff only is in the State, but the matrimonial 
domicil is in another State, and where there has been 
only constructive and not actual service upon the de- 
fendant, has not yet been answered by the Supreme 
Court. ^ The better opinion would seem to be, however, 
that it has. Where the plaintiff has not a bona fide 
domicil in the State, a court cannot render a decree 
binding in other States even if the non-resident de- 
fendant voluntarily enters a personal appearance 
(Andrews v. Andrews, 188 U. S., 14). Of course, 
however, there is nothing to prevent courts of one 
State from recognizing, if they see fit, a decree thus 
granted in another State. The provision of the Fed- 
eral Constitution is brought into force only when state 
courts refuse to grant full faith and credit (Lynde 
V. Lynde, 181 U. S., 183). 

Finally it should be said that in all cases where the 
notice that has been served upon the defendant has 
been but a constructive one, that is, by publication or 
mailing and not personal, the decree that is rendered 
has no extraterritorial force except as dissolving the 
matrimonial status. It cannot control in an extrater- 

1 In Andrews v. Andrews, decided in 1903, the Court said : 
''True it is that in Bell v. Bell and Streitwolf v. Streitwolf, the 
question was reserved whether jurisdiction to render a divorce 
having extraterritorial effecl could be acquired by a mere 
domicil in the State of the party plaintifif, where there had 
been no matrimonial domicil in such State— a question also re- 
served here." 

277 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ritorial manner questions of property rights, custody 
of children, and the payment of alimony. 

The same principle appears in all suits. Where only 
constructive service has been obtained, only a judg- 
ment in rem may be rendered, that is, one upon which 
execution may be issued against any property within 
the State. Only in case there has been personal service 
upon the defendant may a judgment in personam be 
rendered, upon which suit may be brought in another 
State. 

The clause of the Constitution which declares that 
"the citizens of each State shall be entitled to all privi- 
leges and immunities of citizens in the several States," 
has for its general aim the prevention of arbitrary and 
vexatious discriminations by the several States in 
favor of their own citizens and against the citizens of 
other States. "It was undoubtedly the object of the 
clause in question," says the Supreme Court in the 
case of Paul v. Virginia (8 Wall., 168), "to place the 
citizens of each State upon the same footing with citi- 
zens of other States, so far as the advantages resulting 
from citizenship in those States are concerned. It re- 
lieves them from the disabilities of alienage in other 
States; it inhibits discriminating legislation against 
them by other States; it gives them the right of free 
ingress into other States, and egress from them ; it in- 
sures to them in other States the same freedom pos- 
sessed by the citizens of those States in the acquisition 
and enjoyment^Df property and in the pursuit of hap- 
piness ; and it secures to them in other States the equal 
protection of their laws. It has been justly said that 
no provision in the Constitution has tended so strongly 

278 



INTERSTATE RELATIONS 



to constitute the citizens of the United States one peo- 
ple as this (Lemmon v. The People of N. Y., 20 N. Y., 
607). Indeed, without some provision of the kind, re- 
moving from the citizens of each State the disabilities 
of alienage in the other, and giving them equality of 
privileg-e with citizens of those States, the Republic 
would have constituted little more than a league of 
States ; it would not have constituted the Union which 
now exists. ' ' 

In a very early case in the federal Circuit Court 
(Corfield v. Coryell, 4 Wash. C. C, 371), Justice 
Washington attempted a still more particular, though 
not an exhaustive, enumeration of the privileges and 
immunities that are protected from state discrimina- 
tion. He there said : ' ' The inquiry is, what are the 
privileges and immunities of citizens in the several 
States? We feel no hesitation in confining these ex- 
pressions to those privileges and immunities which are, 
in their nature, fundamental ; which belong, of right, 
to the citizens of all free governments, and which have, 
at all times, been enjoyed by the citizens of the several 
States which compose this Union from the time of their 
becoming free, independent, and sovereign. What 
these fundamental principles are, it would perhaps be 
more tedious than difficult to enumerate. They may, 
however, be comprehended under the following general 
heads: protection by the government, the enjoyment 
of life and liberty, with the right to acquire and pos- 
sess property of every kind, and to pursue and obtain 
happiness and safety; subject nevertheless to such re- 
straints as the government may justly prescribe for 
the general good of the whole. The right of a citizen 

279 



THE AMERICAN CONSTITUTIONAL SYSTEM 

of one State to pass through or to reside in any other 
State for the purposes of trade, agriculture, profes- 
sional pursuits or otherwise ; to claim the benefit of the 
writ of habeas corpus; to institute and maintain ac- 
tions of any kind in the courts of the State; to take, 
hold, and dispose of property, either real or personal ; 
and an exemption from higher taxes or impositions 
than are paid by the other citizens of the State, may be 
mentioned as some of the particular privileges and im- 
munities of citizens, which are clearly embraced by the 
general description of privileges deemed to be funda- 
mental ; to which may be added the elective franchise, 
as regulated and established by the laws or constitu- 
tion of the State in which it is to be exercised.^ These, 
and many others which might be mentioned, are, 
strictly speaking, privileges and immunities, and the 
enjoyment of them by the citizens of each State in 
every other State was manifestly calculated (to use 
the expression of the preamble to the corresponding 
provision in the old Articles of Confederation) 'the 
better to secure and perpetuate mutual friendship and 
intercourse among the people of the different States of 
the Union.' " 

Much of the foregoing quotation is obiter, the deter- 
mination of the commonwealth privileges and immu- 
nities not being necessarily involved in the case. 
Many of these rights have, however, in subsequent 

1 As we shall presently see, the right to the exercise in the 
several States of the elective franchise may be made dependent 
upon residence in the State for a fixed period. This period of 
residenceship must be the same for all persons coming from any 
of the other States. 

280 



INTERSTATE RELATIONS 



cases, been specifically passed upon and sustained/ 
and it is believed that there is not one of them that 
would not be declared by the Supreme Court, in a 
proper case, to be beyond the discriminating power of 
the States. 

The latest important construction by the Supreme 
Court of this equal privileges and immunities clause is 
to be found in the case of Blake v. McClung (172 U. S., 
239), decided in 1898. In that case there was held un- 
constitutional an act of the State of Tennessee which 
provided that resident creditors of mining and manu- 
facturing corporations chartered in other States, and 
doing business in the State of Tennessee should have 
^'si priority in the distribution of assets, or subjection 
to the same, or any part thereof, to the payment of 
debts over all simple contract creditors, being residents 
of any other country or countries. ' ' After calling at- 
tention to the fact that the court had never attempted 
to give an exact or comprehensive definition of the 
clause ''privileges and immunities" but had deemed 
it ''safe, and more in accordance with the duty of a 
judicial tribunal, to leave its meaning to be determined 
in each case, upon a view of the particular rights 
asserted and denied therein," the Court neverthe- 
less goes on to quote with approval the decision of 
Justice Washington in Corfield v. Coryell, and the 
opinion of the Supreme Court in Paul v. Virginia. 
The principles therein stated, it is declared, "have 
not been modified by any subsequent decision of this 
court. ' ' 

1 See especially articles by W. S. Meyers in ''Michigan 
Law Beview," I, pp. 286, 364. 

281 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Turning now to the negative side of the subject, it 
may be said that a citizen of one State, resident in or 
seeking the enforcement of rights in another State, is 
not entitled, of right, to all the privileges and immuni- 
ties that the laws and constitution of his own State 
may grant to him. 

''The privileges and immunities secured to citizens 
of each State in the several States, by the provision in 
question," the Supreme Court has declared (Paul v. 
Virginia), ''are those privileges and immunities which 
are common to the citizens in the latter States under 
their constitution and laws by virtue of their being 
citizens. Special privileges enjoyed by citizens in their 
ow^n States are not secured in other States by this pro- 
vision. It was not intended by the provision to give 
to the laws of one State any operation in other States. 
They can have no such operation, except by the per- 
mission, express or implied, of those States." 

Continuing, the Court goes on in the same case to 
declare that inasmuch as a corporation is the mere 
creation of local law, it can have no legal existence, or 
right to do business, beyond the limits of the sover- 
eignty by which it has been created. In other words, 
the interstate comity clause of the federal Constitution 
which we have been discussing does not necessitate the 
recognition by the several States of corporations cre- 
ated by any of the other States. ' ' Having no absolute 
right of recognition in other States," says the Court, 
"but depending for such recognition and enforcement 
of its contracts upon their assent, it follows, as a mat- 
ter of course, that such assent may be granted upon 
such terms and conditions as those States may think 

282 



INTERSTATE RELATIONS 



proper to impose. They may exclude the foreign cor- 
poration entirely; they may restrict its business to 
particular localities, or they may exact such security 
for the performance of its contracts with their citizens 
as in their judgment will best promote the public in- 
terest. The whole matter rests in their discretion." 

This principle of state omnipotence when dealing 
with the corporations of other States is, however, lim- 
ited, it should be observed, in the very important re- 
spect that in so far as such corporations are engaged 
in the conduct of interstate commerce they may not be 
controlled, the regulation of this subject being, as has 
been before shown, exclusively a federal concern.^ 

The interstate comity clause of the federal Constitu- 
tion also does not compel the several States to grant to 
resident citizens of the other States the political privi- 
leges extended their own citizens. This the Supreme 
Court has held from the very beginning, and has 
recently reaffirmed in the case of Blake v. McClung. 
"A State," says the court in that case, " may, by rule 
uniform in its operation as to citizens of the several 
States, require residence within its limits for a given 
ime before a citizen of another State who becomes a 
resident thereof shall exercise the right of suff'rage or 
become eligible to office. It has never been supposed 
that regulations of that character materially inter- 
fered with the enjoyment by citizens of each State of 
the privileges and immunities secured by the Constitu- 
tion to citizens of the several States. The Constitution 
forbids only such legislation aff'ecting citizens of the 

1 See especially Pensacola Telegraph Co. v. Western Union 
Telegraph Co., 96 U. S., 1. 

283 



THE AMERICAN CONSTITUTIONAL SYSTEM 

respective States as will substantially or practically 
put a citizen of one State in a condition of alienage 
when he is within or removes to another State, or when 
asserting in another State the rights that commonly 
appertain to those who are part of the political com- 
munity known as the People of the United States, by 
and for whom the Government of the Union was or- 
dained and established." 

Finally, it may be said, that the several States may 
impose upon non-residents such special limitations and 
obligations as are, in aim and effect, not discriminative 
but reasonably necessary for the protection of their 
own citizens from fraud, disease, or injury of any sort. 
Thus, as an example, though the citizens of other 
States may not be forbidden to sue in the courts of the 
State, they may be required to give bonds for costs 
not exacted of residents. 



COMPACTS BETWEEN THE STATES 

The control of international relations being exclu- 
sively vested in the Federal Government, it necessarily 
follows that the several States have no authority to 
enter into any diplomatic or political relations with 
foreign powers. Nevertheless, from an excess of cau- 
tion, the federal Constitution declares that ''No State 
shall enter into any treaty, alliance or confederation," 
and that "No State shall, without the consent of Con- 
gress, . . . enter into any agreement or compact with 
another State, or with a foreign power." 

It will be noticed that in the latter of these two con- 
284 



INTERSTATE RELATIONS 



stitutional clauses, the qualification "without the con- 
sent of Congress ' ' is introduced. There has, therefore, 
never been any doubt but that when this congressional 
consent is extended, the several States of the American 
Union may enter into agreements and compacts wich 
' one another, so long as their effect is not to create what 
in political language is termed an "alliance" or " con- 
federation. "^ Not only this, but it has been held that 
there are a variety of subjects concerning which the 
several States may enter into agreements with one an- 
other without the necessity of obtaining the consent 
of Congress. Upon this point, in Virginia v. Tennes- 
see (148 U. S., 503), the Supreme Court said: 

"There are many matters upon Avhich different 
States may agree that can in no respect concern the 
United States. If, for instance, Virginia should come 
into possession and ownership of a small parcel of land 
in New York which the latter State might desire to 
acquire as a site for a public building, it would hardly 
be deemed essential for the latter State to obtain the 
consent of Congress before it could make a valid agree- 
ment with Virginia for the purchase of the land. If 
Massachusetts, in forwarding its exhibits to the 
World's Fair at Chicago, should desire to transport 
them a part of the distance over the Erie Canal, it 
would hardly be deemed essential for that State to 
obtain the consent of Congress before it could contract 
with New York for the transportation of the exhibits 
through the State in that way. If the bordering line 
of the two States should cross some malarious and 
disease-producing district, there could be no possible 

1 Green v. Biddle, 8 Wh., 1 ; Poole v. Fleeger, 11 Pet., 185. 

285 



THE AMERICAN CONSTITUTIONAL SYSTEM 

reason, on any conceivable public grounds, to obtain 
the consent of Congress for the bordering States to 
agree to unite in removing the cause of disease. So, in 
the case of threatened invasion of cholera, plague, or 
other causes of sickness and death, it would be the 
height of absurdity to hold that the threatened States 
could not unite in providing means to prevent and 
repel the invasion of the pestilence without obtaining 
the consent of Congress, which might not be at the 
time in session." 

"If, then," the Court asks, "the terms 'compact' or 
'agreement' in the Constitution do not apply to every 
possible compact or agreement between one State and 
another, for the validity of which the consent of Con- 
gress must be obtained, to what compacts or agree- 
ments does the Constitution apply 1 " "Looking at 
the clause in which the terms 'compact' or 'agreement' 
appear," answers the Court, "it is evident that the 
prohibition is directed to the formation of any combi- 
nation tending to the increase of political power in the 
States, which may encroach upon or interfere with the 
just supremacy of the United States, ' ' ^ 



SUITS BETWEEN STATES 

A FINAL topic to be discussed in connection with the 
general subject of Interstate Relations is that of the 
amenability of one State to a suit brought against it 
by another State. 

1 The Court then goes on to quote with approval from Story's 
"Commentaries upon the Constitution," Sec. 1403. 

286 



INTERSTATE RELATIONS 



Since the very first years of the Union, the Supreme 
Court of the United States, in the exercise of its origi- 
nal jurisdiction, has entertained suits between States 
upon questions of boundary/ This tribunal has not, 
however, limited its jurisdiction over suits between 
States to boundary controversies merely. Whenever 
it has discovered substantial state interests at stake, it 
has extended its judicial power. Thus, in the recent 
case of Missouri v. Illinois (180 U. S., 208), decided in 
1900, in which the State of Missouri had complained 
that the health and property of her citizens were en- 
dangered by the emptjnng into the Mississippi River 
of the sewage of the City of Chicago, the Supreme 
Court, in overruling a demurrer as to its jurisdiction, 
declared: "An inspection of the bill discloses that the 
nature of the injury complained of is such that an ade- 
quate remedy can only be found in this Court at the 
suit of the State of Missouri, It is true that no ques- 
tion of boundary is involved, nor of direct property 
rights belonging to the complainant State. But it 
must surely be conceded that, if the health and com- 
fort of the inhabitants of a State are threatened, the 
State is the proper party to represent and defend 
them. If Missouri were an independent and sovereign 
State all must admit that she could seek a remedy by 
negotiation, and, that failing, by force. Diplomatic 
powers and the right to make war having been surren- 
dered to the General Government, it was to be expected 
that upon the latter would be devolved the duty of 
providing a remedy, and that remedy, we think, is 

1 For a review of such cases see the opinion of the Supreme Court 
rendered in the ease of Missouri v. Illinois, 180 U. S., 208. 

287 



THE AMERICAN CONSTITUTIONAL SYSTEM 

found in the constitutional provisions we are consid- 
ering. ' ' 

So, also, in the case of Kansas v. Colorado (185 
U. S., 125), decided in 1902, the Supreme Court held 
that a controversy between States of which it had 
original jurisdiction was presented by a bill averring 
that the defendant State had, and was about to exer- 
cise, the power wholly to deprive the plaintiff State of 
the benefit of the water of the Arkansas River which 
rises in the State of Colorado and flows into and 
through the State of Kansas. 

In the case of Louisiana v. Texas (176 U. S., 1), 
however, the court held that a bill alleging that the 
public officers of the latter State were so executing 
quarantine laws, valid in themselves, as to discriminate 
between the citizens of Texas and those of Louisiana, 
did not state a proper ground of a suit between States. 
In its opinion the Court said : "In order that a contro- 
versy between States, justiciable in this court, can be 
held to exist, something more must be put forward 
than that the citizens of one State are injured by the 
maladministration of the laws of another. ... A 
controversy between States does not arise unless the 
action complained of is state action, and acts of state 
officers in abuse or excess of their powers cannot be 
laid hold of as in themselves committing one State to 
a distinct collision with a sister State." 

Regarding this subject of suits between States, it 
may finally be added that it has been held that neither 
Indian tribes nor territories are "States" in the sense 
of the clause of the Constitution granting original ju- 
risdiction to the Supreme Court (Cherokee Nation v. 
Georgia, 5 Pet., 1 ; and Hepburn v. Ellzey, 2 Cr., 445) . 

288 



INTERSTATE RELATIONS 



No instance of a suit betv»^een a foreign power and one 
of the States of the American Union has arisen, and 
it is very doubtful whether the Supreme Court would 
entertain one. A foreign power could not, of course, 
be made to appear as a defendant in such a suit, and 
reason would therefore suggest that it should not be 
permitted to appear as a plaintiff. 

The question whether the Supreme Court will enter- 
tain a suit requiring a money judgment brought by 
one State against another, has just been decided in 
the affirmative. Such a suit was brought a number of 
years ago by New Hampshire against Louisiana (108 
U. S., 76), but was dismissed upon the ground that the 
plaintiff State was not really a party of interest, but 
had instituted the suit in behalf of some of its own 
citizens. In the case of South Dakota v. North Caro- 
lina (24 Supreme Court Reporter, 269), however, de- 
cided February 1, 1904, it appearing that South 
Dakota was suing in its own behalf, the Supreme 
Court asserted its original jurisdiction and rendered 
judgment against the defendant State, North Caro- 
lina. A dissenting opinion, concurred in by four jus- 
tices, was filed. 

No suit has yet been brought by a State against the 
United States. In Chisholm v. Georgia, Chief Jus- 
tice Jay indicated, obiter, that such a suit probably 
could not be brought ; but in Mississippi v. Johnson, a 
contrary view was intimated.^ 

A number of suits against individual States insti- 

1 For reasons stated in Chapter ix. For a fuller discussion of 
this point, see "Columbia Law Review," Vol. II, 283, 364. 

2 See two excellent articles entitled " Notes on Suits between 
States," in the "Columbia Law Review," Vol. II, 283, 364. 

19 289 



THE AMERICAN CONSTITUTIONAL SYSTEM 

tuted by the United States have been entertained by 
the Supreme Court. Thus in United States v. North 
Carolina (136 U. S., 211) an action of debt upon cer- 
tain bonds issued by the defendant was tried and 
determined upon its merits; and in United States v. 
Texas (143 U. S., 621) a question of boundary was 
determined. 



290 



BIBLIOaRAPHICAL NOTE 

This note is by no means intended to be exhaustive. 
Its aim is simply to suggest the more important 
sources of information regarding the constitutional 
law of the United States. 

I. BiUiographies. 

Channing and Hart, Guide to the Study of American 
History. 1896. 

A. B. Hart, Handbook of the History, Diplomacy, and 
Government of the United States. 1901. 

A. P. C. Griffin, Select List of Books on the Consti- 
tution of the United States (pamphlet). 1903. 

W. E. Foster, References to the Constitution of the 
United States (pamphlet). 1890. 

II. Sources. 

1. United States Supreme Court Reports. The one 
great source of information regarding the constitu- 
tional law of the United States is the reported deci- 
sions of the federal Supreme Court. The volumes in 
which these are contained now (1904) number one 
hundred and ninety. About four new volumes are 
added each year. In the more important cases, ab- 
stracts of counsel as well as the opinions of the justices 
are given. Until 1875 these volumes received the 
name of the official reporting them. Since then they 

291 



THE AMERICAN CONSTITUTIONAL SYSTEM 

have been designated simply as United States Reports. 
Current decisions, in unbound form, are published 
and sold to subscribers. 

The following is a list of the reports, giving their 
titles, abbreviations commonly used in citing them, the 
number of volumes, and periods covered. 



% 



i 



Reporters 








Abbreviations 


Volumes 


Periods Covered ^ 


Dallas 








Ball. 


4 


1790-1800 . 


Cranch 








Cr. 


9 


1801-1815 


Wheaton 








Wh. or Wheat. 


12 


1816-1827 


Peters 








Pet. 


16 


1828-1842 


Howard 
Black 








How. 
Black 


24 

2 


1843-1860 
1861-1862 


Wallace 








Wall. 


23 


1863-1874 


United States 


Report 


s 91-190 U. S. 


100 


1875-1904 


Volumes 91- 


-107 U. 


S. 


inclusive are sometimes cited 


as Otto 1-17. 



J. B. Thayer's "Cases in Constitutional Law" 
(1895), in two very large volumes, is an admirable 
selection of condensed cases, illuminated with notes, 
prepared for use by students following the "Case 
Book" system of instruction. Smaller collections 
are: 

C. E. Boyd's "Cases in American Constitutional 
Law" (1898) ; 

E. McClain's "A Selection of Cases on Constitutional 
Law" (1900). 

2. Reports of the Inferior Federal Courts. Al- 
most all important constitutional questions are carried 
to the Supreme Court, so that these reports are very 
much less important than those of the highest court. 

3. Repo7'ts of the Highest Courts of the States. 
Many important constitutional questions in state con- 

292 



BIBLIOGRAPHICAL NOTE 



stitutional law receive their final determination by 
these tribunals. 

4. Opinions of the Attorney-General of the United 
States. These opinions, given for the guidance of 
federal officers, often deal with important constitu- 
tional questions that have not been, or cannot be, con- 
sidered by the Supreme Court. 

5. Federal Statutes and Treaties. Each year there 
is published by the National Government a volume en- 
titled "The Statutes at Large of the United States of 
America, . . . and Recent Treaties, Conventions, Ex- 
ecutive Proclamations, and the Concurrent Resolu- 
tions of the Two Houses of Congress. ' ' In 1878 there 
was published ''The Revised Statutes of the United 
States, ' ' which embraced all federal laws, general and 
permanent in their nature, in force December 1, 1873. 
''A Supplement to the Revised Statutes of the United 

States," embracing the laws, general and perma- 
nent in their nature, passed since 1873 and in force 
in 1891, was published in 1891. 

''The Compiled Statutes of the United States." 3 
vols. 1901. Gives the text of all general laws of 
the United States, with annotations and index. A 
supplement to this publication, giving the general 
laws passed by the Fifty-seventh Congress, was pub- 
lished in 1904. A private publication. 

Gould and Tucker, Notes on United States Revised 
Statutes. 3 vols. 1898-1904. A private publica- 
tion. 

6. Messages and Papers of the Presidents of the 
United States (1789-1897). 10 vols. 1899. Pub- 
lished by the United States Government. 

293 



THE AMERICAN CONSTITUTIONAL SYSTEM 



III. General Treatises on United States Constitu- 
tional Laiv and Government. Alphabetically ar- 
ranged. 

There exists no single work that is at once modern, 
comprehensive, and satisfactory in method of treat- 
ment. The following treatises will, however, be found 
the most serviceable. 

B. L. Ashley, The American Federal State. 1902. 
H. C. Black, Handbook of American Constitutional 

Law. 2d Ed. 1897. 
G. S. BouTWELL, The Constitution of the United 

States at the End of the First Century. 1895. 
H. Brannon, a Treatise on the Rights and Privileges 
Guaranteed by the Fourteenth Amendment to the 
Constitution of the United States. 1901. 
James Bryce, The American Commonwealth. 2 vols. 

1891. 
W. G. Bullitt, Review of the Constitution of the 
. United States. 1899. 

J. W. Burgess, Political Science and Comparative 
Constitutional Law. 2 vols. 1890. Compares and 
criticizes from the standpoint of political science 
the constitutions of the United States, Germany, 
England, and France. 
H. L. Carson, History of the Supreme Court of the 

United States. 2 vols. 1903. 
T. M. Cooley, General Principles of Constitutional 
Law in the United States. 3d Ed. 1898. An ac- 
curate work by an eminent authority, but too brief 
to be of much value. 
T. M. Cooley, A Treatise on the Constitutional Limi- 
tations which Rest upon the Legislative Power of 
294 



BIBLIOGRAPHICAL NOTE 



the States of the American Union. 7th Ed. 1903. 
A great work, but, as its title indicates, covering 
only a portion of the field of American constitu- 
tional law. 

T. M. CooLEY and others. The Constitutional History 
of the United States as Seen in the Development of 
its Law. 1889. A series of excellent lectures by 
eminent lawyers. 

B. R. Curtis, The Jurisdiction, Practice, and Peculiar 
Jurisprudence of the Courts of the United States. 
2d Ed. 1896. An excellent work by an eminent 
judge. 

The Federalist. A collection of essays written in 
1787, by Hamilton, Madison, and Jay, expounding 
the Constitution and advocating its adoption by the 
States. Still indispensable to the student. 

Roger Foster, Commentaries on the Constitution of 
the United States. 1895. This work is to be in sev- 
eral volumes, of which but one has appeared. 

F. J. GooDNOw, Comparative Administrative Law: 
An Analysis of the Administrative Systems, Na- 
tional and Local, of the United States, England, 
France, and Germany. 2 vols. 1893. 

W. D. Guthrie, The Fourteenth Article of Amend- 
ment to the Constitution of the United States. 
1898. 

J. I. Hare, American Constitutional Law. 2 vols. 
1889. A scholarly work, but discursive and not com- 
prehensive. 

H. E. VON HoLST, The Constitutional Law of the 
United States of America. 1887. A brief, sug- 
gestive, critical, but not always accurate work. 
295 



THE AMERICAN CONSTITUTIONAL SYSTEM 

James Kent, Commentaries on American Law. 4 
vols. 14th Ed. 1896. One book of this great work 
deals with constitutional law. 

J. J. Lalor, Cyclopaedia of Political Science, Political 
Economy, and of the Political History of the United 
States. 3 vols. 1881-84. 

S. F. Miller, Lectures on the Constitution of the 
United States. 1891. An excellent work by one of 
the justices of the Supreme Court. 

John Ordronaux, Constitutional Legislation in the 
United States: Its Origin and Application to the 
Relative Powers of Congress and of State Legisla- 
tures. 1891. 

C. S. PxVtterson, The United States and the States 
under the Constitution. 1888. 

J. N. Pomeroy, An Introduction to the Constitutional 
Law of the United States. 10th Ed. 1888. An ex- 
cellent work, of which, however, there is unfortu- 
nately no recent edition. 

C. F. Randolph, The Law and Policy of Annexation. 
1901. 

Joseph Story, Commentaries on the Constitution of 
the United States. 2 vols. 5th Ed. 1891. A clas- 
sic work. 

C. G. Tiedeman, The Unwritten Constitution of the 
United States. 1890. 

J. R. Tucker, The Constitution of the United States : 
A Critical Discussion of its Genesis, Develop- 
ment, and Interpretation. 2 vols. 1899. An 
excellent modern work, by a Southern lawyer of 
eminence. 

W. W. Willoughby, The Supreme Court of the 

296 



BIBLIOGRAPHICAL NOTE 



United States: Its History and Influence in our 
Constitutional System. 1890. 

IV. The Nature of the Federal State. 

A. B. Hart, An Introduction to the Study of Federal 

Government. 1891. 
J. W. Burgess, Political Science and Comparative 

Constitutional Law. 2 vols. 1893. 
A. V. Dicey, The Law of the Constitution. 6th Ed. 

1902. 
L. Le Fur, Etat Federal et Confederation d'Etats. 

1896. 
G. Jellinek, Die Lehre von den Staatenverbindungen. 

1882. 
S. Brie, Der Bundesstaat. 1874. 
S. Brie, Theorie der Staatenverbindungen. 1886. 
E. BoREL, Etude sur la Souverainete et I'Etat Federa- 

tif. 1886. 
W. W. WiLLOUGHBY, The Nature of the State. 1896. 

V. The Nature of the American State. Chrono- 
logically arranged. 

In addition to the general treatises on United States 

Constitutional Law, cited above, the following works 

are of value in tracing the history of theories of the 

Nature of the American State. 

St. George Tucker, The Commentaries of Black- 
stone. Vol. I, Appendix. 1803. 

John Taylor, Constitution Construed. 1820. 

William Rawle, A View of the Constitution of the 
United States of America. 1825. 

J. C. Calhoun, Writings of. 

297 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Daniel Webster, Speeches of. 

W. A. DuER, The Constitutional Jurisprudence of the 
United States. 1843. 

J. T. Curtis, The History, Origin, Formation, and 
Adoption of the Constitution of the United States. 
1854. 

Francis Lieber, What is our Government: League, 
Pact, or Government ? 1861. 

Horace Greeley, The American Conflict. 2 vols. 
1864-65. 

B. J. Sage (P. C. Centz), The Republic of Republics. 
1865. 

0. A. Brownson, The American Republic. 1865. 

J. A. Jameson, The Constitutional Convention: Its 
History, Powers, and Modes of Proceeding. 1st Ed., 
1867. 4th Ed., 1887. 

E. A. Pollard, The Lost Cause. 1867. 

A. H. Stephens, A Constitutional View of the War 
between the States. 1868-70. 

Elisha Mulford, The Nation. 1870. 

W. O. Bateman, Political and Constitutional Law of 
the United States. 1876. 

J. C. HuRD, The Theory of our National Existence, as 
shown by the Action of the Government of the 
United States since 1861. 1881. 

P. Bliss, Of Sovereignty. 1885. 

A. W. Small, The Beginnings of American Nation- 
ality. 1890. 

J. C. HuRD, The Union State : A Letter to our States- 
Rights Friend. 1890. 

Brinton Coxe, An Essay on Judicial Power and Un- 
constitutional Legislation. 1893. 
298 



1 



BIBLIOGRAPHICAL NOTE 



C. W. LoRiNG, Nullification, Secession, Webster's Ar- 
gument, and the Virginia and Kentucky Resolu- 
tions. 1893. 

J. L. M. Curry, The Southern States of the American 
Union. 1895. 

E. P. Powell, Nullification and Secession in the 
United States. 1897. 

W. A. Dunning, Essays on Civil War and Recon- 
struction. 1898. 

C. H. Butler, The Treaty-Making Power of the 
United States. 2 vols. 1902. 

C. E. Merriam, a History of American Political Theo- 
ries. 1903. 



299 



CONSTITUTION 
OF THE UNITED STATES^ 

We, the People of the United States, in order to form a 
more perfect union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the general 
welfare, and secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Constitution for 
the United States of America. 

ABTICLE I. — Legislative Department 

Section I.— All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist 
of a Senate and House of Eepresentatives. 

Section II.— Clause 1. The House of Eepresentatives shall 
be composed of members chosen every second year by the peo- 
ple of the several States, and the electors in each State shall 
have the qualifications requisite for electors of the most numer- 
ous branch of the State Legislature. 

Clause 2. No person shall be a Eepresentative who shall 
not have attained to the age of twenty-five years, and been 
seven years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that State in which he shall 
be chosen. 

Clause 3. Eepresentatives and direct taxes shall be appor- 
tioned among the several States which may be included within 
this Union, according to their respective numbers, which shall 
be determined by adding to the whole number of free persons, 
including those bound to service for a term of years, and 
excluding Indians not taxed, three-fifths of all other persons. 

^ Italicized clauses have been repealed or have become 
obselete. 

300 



CONSTITUTION OF THE UNITED STATES 

The actual enumeration shall be made within three years after 
the first meeting of the Congress of the United States, and 
within every subsequent term of ten years, in such manner as 
they shall by law direct. Tlie number of Bepresentatives shall 
not exceed one for every thirty thousand, hut. each State shall 
have at least one Representative ; and until such enumeration 
shall he made, the State of New Hampshire shall he entitled 
to choose three ; Massachusetts, eight; Bhode Island and Provi- 
dence Plantations, one; Connecticut, five; New York, six; New 
Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, 
six; Virginia, ten; North Carolina, five; South Carolina, five; 
and Georgia, three. 

Clause 4. When vacancies happen in the representation from 
any State, the executive authority thereof shall issue writs of 
election to fill such vacancies. 

Clause 5. The House of Representatives shall choose their 
Speaker and other officers; and shall have the sole power of 
impeachment. 

Section Til.— Clause 1. The Senate of the United States 
shall be composed of two Senators from each State, chosen by 
the Legislature thereof, for six years; and each Senator shall 
have one vote. 

Clause 2. Immediately after they shall be assembled in con- 
sequence of the first election, they shall be divided as equally 
as may be into three classes. The seats of the Senators of the 
first class shall be vacated at the expiration of the second year; 
of the second class, at the expiration of the fourth year; and 
of the third class, at the expiration of the sixth year, so that 
one-third may be chosen every second year; and if vacancies 
happen by resignation, or otherwise, during the recess of the 
Legislature of any State, the Executive thereof may make tem- 
porary appointments until the next meeting of the Legislature, 
which shall then fill such vacancies. 

Clause 3. No person shall be a Senator who shall not have 
attained to the age of thirty years, and been nine years a citi- 
zen of the United States, and who shall not, when elected, be 
an inhabitant of that State for which he shall be chosen. 

Clause 4. The Vice-President of the United States shall be 

301 



THE AMERICAN CONSTITUTIONAL SYSTEM 

president of the Senate, but shall have no vote, unless they be 
equally divided. 

Clause 5. The Senate shall choose their other officers, and 
also a President pro tempore, in the absence of the Vice-Presi- 
dent, or when he shall exercise the office of President of 
the United States. 

Clause 6. The Senate shall have the sole power to try all 
impeachments: when sitting for that purpose, they shall be on 
oath or affirmation. When the President of the United States 
is tried, the Chief Justice shall preside; and no person shall 
be convicted without the concurrence of two-thirds of the mem- 
bers present. 

Clause 7. Judgment in cases of impeachment shall not ex- 
tend further than to removal from office, and disqualification 
to hold and enjoy any office of honor, trust, or profit under the 
United States; but the party convicted shall nevertheless be 
liable and subject to indictment, trial, judgment and punish- 
ment, according to law. 

Section TV.— Clause 1. The times, places and manner of 
holding elections for Senators and Kepresentatives shall be 
prescribed in each State by the Legislature thereof; but the 
Congress may at any time, by law, make or alter such regula- 
tions, except as to the places of choosing Senators. 

Clause 2. The Congress shall assemble at least once in every 
year, and such meeting shall be on the first Monday in Decem- 
ber, unless they shall by law appoint a different day. 

Section Y.— Clause 1. Each house shall be the judge of the 
elections, returns and qualifications of its own members, and a 
majority of each shall constitute a quorum to do business; but 
a smaller number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, in 
such manner, and under such penalties, as each house may 
provide. 

Clause 2. Each house may determine the rules of its pro- 
ceedings, punish its members for disorderly behavior, and, 
with the concurrence of two-thirds, expel a member. 

Clause 3. Each house shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such parts 
as may in their judgment require secrecy; and the yeas and 

302 



CONSTITUTION OF THE UNITED STATES 

nays of the members of either house on any question shall, 
at the desire of one-fifth of those present, be entered on the 
journal. 

Clause 4. Neither house, during the session of Congress, 
shall, without the consent of the other, adjourn for more 
than three days, nor to any other place than that in which 
the two houses shall be sitting. 

Section YI.— Clause 1. The Senators and Eepresentatives 
shall receive a compensation for their services, to be ascer- 
tained by law, and paid out of the treasury of the United 
States. They shall in all cases, except treason, felony and 
breach of the peace, be privileged from arrest during their 
attendance at the session of their respective houses, and in 
going to and returning from the same; and for any speech or 
debate in either house, they shall not be questioned in any other 
place. 

Clause 2. No Senator or Eepresentative shall, during the 
time for which he was elected, be appointed to any civil ofl&ce 
under the authority of the United States, which shall have 
been created, or the emoluments whereof shall have been in- 
creased, during such time; and no person holding any office 
under the United States shall be a member of either house dur- 
ing his continuance in office. 

Section YIl.— Clause 1. All bills for raising revenue shall 
originate in the House of Representatives; but the Senate may 
propose or concur with amendments, as on other bills. 

Clause 2. Every bill which shall have passed the House of 
Representatives and the Senate, shall, before it become a law, 
be presented to the President of the United States; if he ap- 
prove, he shall sign it, but if not, he shall return it, with his 
objections, to that house in which it shall have originated, 
who shall enter the objections at large on their journal, and 
proceed to reconsider it. If after such reconsideration, two- 
thirds of that house shall agree to pass the bill, it shall be sent, 
together with the objections, to the other house, by which it 
shall likewise be reconsidered, and if approved by two-thirds 
of that house, it shall become a law. But in all such cases 
the votes of both houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill 

303 



THE AMERICAN CONSTITUTIONAL SYSTEM 

shall be entered on the journal of each house respectively. 
If any bill shall not be returned by the President within ten 
days (Sunday excepted) after it shall have been presented to 
him, the same shall be a law, in like manner as if he had 
signed it, unless the Congress by their adjournment prevent 
its return, in which ease it shall not be a law. 

Clause 3, Every order, resolution or vote, to which the con- 
currence of the Senate and House of Eepresentatives may be 
necessary (except on a question of adjournment), shall be pre- 
sented to the President of the United States; and before the 
same shall take effect, shall be approved by him, or being 
disapproved by him, shall be repassed by two-thirds of the 
Senate and House of Eepresentatives, according to the rules 
and limitations prescribed in the case of a bill. 

Section YIll.— Clause 1. The Congress shall have power to 
lay and collect taxes, duties, imposts and excises, to pay the 
debts and provide for the common defence and general welfare 
of the United States; but all duties, imposts and excises shall 
be uniform throughout the United States; 

Clause 2. To borrow money on the credit of the United 
States ; 

Clause 3. To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes; 

Clause 4. To establish an uniform rule of naturalization, 
and uniform laws on the subject of bankruptcies through- 
out the United States; 

Clause 5. To coin money, regulate the value thereof, and of 
foreign coin, and fix the standard of weights and measures; 

Clause 6. To provide for the punishment of counterfeiting 
the securities and current coin of the United States; 

Clause 7. To establish post-offices and post-roads; 

Clause 8. To promote the progress of science and useful 
arts, by securing, for limited times, to authors and inventors 
the exclusive right to their respective writings and discoveries; 

Clause 9. To constitute tribunals inferior to the Supreme 
Court ; 

Clause 10. To define and punish piracies and felonies com- 
mitted on the high seas, and offences against the law of nations ; 

304 



CONSTITUTION OF THE UNITED STATES 

Clause 11. To declare war, grant letters of marque and re- 
prisal, and make rules concerning captures on land and water ; 

Clause 12. To raise and support armies, but no appropria- 
tion of money to that use shall be for a longer term than two 
years ; 

Clause 13. To provide and maintain a navy; 

Clause 14. To make rules for the government and regula- 
tion of the land and naval forces; 

Clause 15. To provide for calling forth the militia to exe- 
cute the laws of the Union, suppress insurrections and repel 
invasions ; 

Clause 16. To provide for organizing, arming, and disci- 
plining the militia, and for governing such part of them as may 
be employed in the service of the United States, reserving to 
the States respectively the appointment of the oflficers, and the 
authority of training the militia according to the discipline 
prescribed by Congress; 

Clause 17. To exercise exclusive legislation in all cases what- 
soever over such district (not exceeding ten miles square) 
as may, by cession of particular States, and the acceptance of 
Congress, become the seat of the government of the United 
States, and to exercise like authority over all places purchased 
by the consent of the Legislature of the State in which the same 
shall be, for the erection of forts, magazines, arsenals, dock- 
yards, and other needful buildings; — And 

Clause 18. To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, and 
all other powers vested by this Constitution in the government 
of the United States, or in any department or officer thereof. 

Section IX.— Clause 1. The migration or importation of 
such persons as any of the States now existing shall thinJc proper 
to admit, shall not he prohiMted hy the Congress prior to the 
year one thousand eight hundred and eight, hut a tax or duty 
may he imposed on such importation, not exceeding ten dollars 
for each person. 

Clause 2. The privilege of the writ of habeas corpus shall 
not be suspended, unless when in cases of rebellion or invasion 
the public safety may require it. 

20 305 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Clause 3. No bill of attainder or ex-post-facto law shall be 



Clause 4. No capitation or other direct tax shall be laid, 
unless in proportion to the census or enumeration hereinbefore 
directed to be taken. 

Clause 5. No tax or duty shall be laid on articles exported 
from any State. 

Clause 6. No preference shall be given by any regulation of 
commerce or revenue to the ports of one State over those of 
another; nor shall vessels bound to, or from, one State, be 
obliged to enter, clear, or pay duties in another. 

Clause 7. No money shall be drawn from the treasury but 
in consequence of appropriations made by law; and a regular 
statement and account of the receipts and expenditures of all 
public money shall be published from time to time. 

Clause 8. No title of nobility shall be granted by the 
United States: And no person holding any ofl&ce of profit or 
trust under them, shall, without the consent of the Congress, 
accept of any present, emolument, office, or title, of any kind 
whatever, from any king, prince or foreign state. 

Section X.~Clause 1. No State shall enter into any treaty, 
alliance, or confederation ; grant letters of marque and reprisal ; 
coin money; emit bills of credit; make any thing but gold and 
silver coin a tender in payment of debts; pass any bill of at- 
tainder, ex-post-facto law, or law impairing the obligation of 
contracts, or grant any title of nobility. 

Clause 2. No State shall, without the consent of the Con- 
gress, lay any imposts or duties on imports or exports, except 
what may be absolutely necessary for executing its inspection 
laws; and the net produce of all duties and imposts, laid by 
any State on imports or exports, shall be for the use of the 
treasury of the United States; and all such laws shall be sub- 
ject to the revision and control of the Congress. 

Clause 3. No State shall, without the consent of Congress, 
lay any duty of tonnage, keep troops or ships-of-war, in time 
of peace, enter into any agreement or compact with another 
State, or with a foreign power, or engage in war, unless actu- 
ally invaded, or in such imminent danger as will not admit 
of delay. 

306 



CONSTITUTION OF THE UNITED STATES 

ARTICLE II.— Executive Department 

Section I.— Clause 1. The executive power shall be vested in 
a President of the United States of America. He shall hold 
his office during the term of four years, and, together with the 
Vice-President, chosen for the same term, be elected as follows : 

Clause 2. Each State shall appoint, in such manner as the 
Legislature thereof may direct, a number of Electors, equal 
to the whole number of Senators and Eepresentatives to which 
the State may be entitled in the Congress; but no Senator or 
Eepresentative, or person holding an office of trust or profit 
under the United States, shall be appointed an Elector. 

[Clause 3. The Electors shall meet in their respective States, 
and vote by ballot for two persons, of v)hom one, at least, shall 
not be an inhabitant of the same State with themselves. And 
they shall maJce a list of all the persons voted for, and of the 
number of votes for each; which list they shall sign and certify, 
and transmit, sealed, to the seat of the Government of the 
United States, directed to the president of the Senate. The 
president of the Senate shall, in the presence of the Senate and 
House of Eepresentatives, open all the certificates, and the votes 
shall then be counted. The person having the greatest number 
of votes shall be the President, if such number be a majority 
of the whole number of Electors appointed; and if there be 
more than one, who have such majority, and have an equal num- 
ber of votes, then the House of Eepresentatives shall imme- 
diately choose, by ballot, one of them for President ; and if no 
person have a majority, then, from the five highest on the list, 
the said House shall, in liTce manner, choose the President. But 
in choosing the President, the votes shall be taken by States, 
the representation from each State havirig one vote; a quorum 
for this purpose shall consist of a member or members from 
two-thirds of the States, and a majority of all the States shall 
be necessary to a choice. In every case, after the choice of the 
President, the person having the greatest number of votes of 
the Electors shall be the Vice-President. But if there should 
remain two or more who have equal votes, the Senate shall 
choose from them, by ballot, the Vice-President.] The fore- 
going Clause was repealed in 1804. It is quoted here merely for 

307 



THE AMERICAN CONSTITUTIONAL SYSTEM 

reference. Article XLI. of the Amendments replaces it in the 
Constitution, and is here inserted instead of the original Clause. 
Amendment, Article XII.— The Electors shall meet in their 
respective States, and vote by ballot for President and Vice- 
President, one of whom, at least, shall not be an inhabitant of 
the same State with themselves; they shall name in their bal- 
lots the person voted for as President, and in distinct ballots 
the person voted for as Vice-President; and they shall make 
distinct lists of all persons voted for as President, and 
of all persons voted for as Vice-President, and of the num- 
ber of votes for each, which lists they shall sign and cer- 
tify, and transmit sealed to the seat of the Government of 
the United States, directed to the president of the Senate;— the 
president of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates, and the 
votes shall then be counted;— the person having the greatest 
number of votes for President, shall be the President, if such 
number be a majority of the whole number of Electors ap- 
pointed; and if no person have such majority, then from the 
persons having the highest numbers not exceeding three on the 
list of those voted for as President, the House of Representa- 
tives shall choose immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by States, the 
representation from each State having one vote; a quorum for 
this purpose shall consist of a member or members from two- 
thirds of the States, and a majority of all the States shall be 
necessary to a choice. And if the House of Representatives 
shall not choose a President whenever the right of choice shall 
devolve upon them, before the fourth day of March next follow- 
ing, then the Vice-President shall act as President, as in the 
case of death or other constitutional disability of the Presi- 
dent. The person having the greatest number of votes as Vice- 
President, shall be the Vice-President, if such number be a 
majority of the whole number of Electors appointed; and if no 
person have a majority, then from the two highest numbers on 
the list, the Senate shall choose the Vice-President; a quorum 
for the purpose shall consist of two-thirds of the whole num- 
ber of Senators, and a majority of the whole number shall be 

308 



CONSTITUTION OF THE UNITED STATES 

necessary to a choice. But no person constitutionally ineligible 
to the ofl&ce of President shall be eligible to that of Vice-Presi- 
dent of the United States. 

Clause 4. The Congress may determine the time of choosing 
the Electors, and the day on which they shall give their votes; 
which day shall be the same throughout the United States. 

Clause 5. No person except a natural-born citizen, or a citi- 
zen of the United States at the time of the adoption of this Con- 
stitution, shall be eligible to the office of President; neither 
shall any person be eligible to that office who shall not have 
attained to the age of thirty-five years, and been fourteen years 
resident within the United States. 

Clause 6. In case of the removal of the President from of- 
fice, or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall devolve on 
the Vice-President, and the Congress may by law provide for 
the case of removal, death, resignation, or inability, both of the 
President and Vice-President, declaring what officer shall then 
act as President; and such officer shall act accordingly until 
the disability be removed, or a President shall be elected. 

Clause 7. The President shall, at stated times, receive for 
his services a compensation which shall neither be increased nor 
diminished during the period for which he shall have been 
elected, and he shall not receive within that period any other 
emolument from the United States, or any of them. 

Clause 8. Before he enter on the execution of his office, he 
shall take the following oath or affirmation: — ''I do solemnly 
swear (or affirm) that I will faithfully execute the office of 
President of the United States, and will, to the best of my 
ability, preserve, protect, and defend the Constitution of the 
United States. ' '* 

Section II.— Clause 1. The President shall be commander- 
in-chief of the array and navy of the United States, and of 
the militia of the several States, when called into the actual 
service of the United States; he may require the opinion, in 
writing, of the principal officer in each of the executive de- 
partments, upon any subject relating to the duties of their re- 
spective offices; and he shall have power to grant reprieves and 

309 



THE AMERICAN CONSTITUTIONAL SYSTEM 

pardons for offences against the United States, except in cases 
of impeachment. 

Clause 2. He shall have power, by and with the advice and 
consent of the Senate, to make treaties, provided two-thirds of 
the Senators present concur; and he shall nominate, and by 
and with the advice and consent of the Senate shall appoint 
ambassadors, other public ministers and consuls, judges of the 
Supreme Court, and all other officers of the United States whose 
appointments are not herein otherwise provided for, and which 
shall be established by law; but the Congress may by law vest 
the appointment of such inferior officers, as they think proper, 
in the President alone, in the courts of law, or in the heads of 
departments. 

Clause 3. The President shall have power to fill up all vacan- 
cies that may happen during the recess of the Senate by grant- 
ing commissions which shall expire at the end of their next ses- 
sion. 

Section III.— He shall from time to time give to the Con- 
gress information of the state of the Union, and recommend to 
their consideration such measures as he shall judge necessary 
and expedient; he may, on extraordinary occasions, convene 
both houses, or either of them, and in case of disagreement 
between them with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper; he shall re- 
ceive ambassadors and other public ministers; he shall take 
care that the laws be faithfully executed, and shall commission 
all the officers of the United States. 

Section IV.— The President, Vice-President, and all civil 
officers of the United States, shall be removed from office on 
impeachment for, and conviction of, treason, bribery, or other 
high crimes and misdemeanors. 



AETICLE ni.— Judicial Department 

Section I.— The judicial power of the United States shall be 
vested in one Supreme Court, and in such inferior courts as 
the Congress may from time to time ordain and establish. The 

310 



CONSTITUTION OF THE UNITED STATES 

judges, both of the Supreme and inferior courts, shall hold 
their offices during good behavior, and shall, at stated times, 
receive for their services a compensation which shall not be 
diminished during their continuance in office. 

Section 11.— Clause 1. The judicial power shall extend to 
all cases, in law and equity, arising under this Constitution, the 
laws of the United States, and treaties made, or which shall 
be made, under their authority;— to all cases affecting ambassa- 
dors, other public ministers, and consuls;— to all cases of ad- 
miralty and maritime jurisdiction;— to controversies to which 
the United States shall be a party;— to controversies between 
two or more States;— between a State and citizens of another 
State; — between citizens of different States; — between citizens 
of the same State claiming lands under grants of different 
States, and between a State, or the citizens thereof, and for- 
eign states, citizens, or subjects. 

Clause 2. In all cases affecting ambassadors, other public 
ministers and consuls, and those in which a State shall be a 
party, the Supreme Court shall have original jurisdiction. In 
all the other cases before mentioned, the Supreme Court shall 
have appellate jurisdiction, both as to law and fact, with such 
exceptions and under such regulations as the Congress shall 
make. 

Clause 3. The trial of all crimes, except in cases of im- 
peachment, shall be by jury, and such trial shall be held in the 
State where the said crimes shall have been committed; but 
when not committed within any State, the trial shall be at such 
place or places as the Congress may by law have directed. 

Section 111.— Clause 1. Treason against the United States 
shall consist only in levying war against them, or in adhering 
to their enemies, giving them aid and comfort. 

Clause 2. No person shall be convicted of treason, unless on 
the testimony of two witnesses to the same overt act, or on con- 
fession in open court. 

Clause 3. The Congress shall have power to declare the pun- 
ishment of treason; but no attainder of treason shall work cor- 
ruption of blood, or forfeiture, except during the life of the 
person attainted. 

311 



THE AMERICAN CONSTITUTIONAL SYSTEM 



AETICLE IV.— General Provisions 

Section I.— Full faith and credit shall be given in each State 
to the public acts, records and judicial proceedings of every 
other State; and the Congress may by general laws prescribe 
the manner in v^^hich such acts, records and proceedings shall 
be proved, and the effect thereof. 

Section 11.— Clause 1. The citizens of each State shall be 
entitled to all privileges and immunities of citizens in the 
several States. 

Clause 2. A person charged in any State with treason, felony, 
or other crime, who shall flee from justice, and be found in 
another State, shall, on demand of the executive authority of 
the State from which he fled, be delivered up, to be removed 
to the State having jurisdiction of the crime. 

Clause 3. No person held to service or labor in one State, 
under the laws thereof, escaping into another, shall, in conse- 
quence of any law or regulation therein, he discharged from such 
service or labor, but shall be delivered up on claim of the party 
to whom such service or labor may be due. 

Section III. — Clause 1. New States may be admitted by the 
Congress into this Union; but no new State shall be formed or 
erected within the jurisdiction of any other State; nor any 
State be formed by the junction of two or more States, or 
parts of States, without the consent of the Legislatures of the 
States concerned as well as of the Congress. 

Clause 2. The Congress shall have power to dispose of and 
make all needful rules and regulations respecting the terri- 
tory or other property belonging to the United States; and 
nothing in this Constitution shall be so construed as to pre- 
judice any claims of the United States, or of any particular 
State. 

Section IV. — The United States shall guarantee to every 
State in this Union a republican form of government, and shall 
protect each of them against invasion, and on application of 
the Legislature, or of the executive (when the Legislature can- 
not be convened), against domestic violence. 

312 



I 



CONSTITUTION OF THE UNITED STATES 



ARTICLE v.— Power of Amendment 

The Congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments to this Constitution, or, 
on the application of the Legislatures of two-thirds of the 
several States, shall call a convention for proposing amend- 
ments, which, in either case, shall be valid to all intents and 
purposes, as part of this Constitution, when ratified by the 
Legislatures of three-fourths of the several States, or by con- 
ventions in three-fourths thereof, as the one or the other mode 
of ratification may be proposed by the Congress; provided that 
no amendment which may be made prior to the year one thou- 
sand eight hundred and eight shall in any manner affect the 
first and fourth clauses in the ninth section of the first article; 
and that no State, without its consent, shall be deprived of its 
equal suffrage in the Senate. 



AETICLE VI.— Miscellaneous Provisions 

Clause 1. All debts contracted, and engagements entered 
into, before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under the 
Confederation. 

Clause 2, This Constitution, and the laws of the United 
States which shall be made in pursuance thereof; and all 
treaties made, or which shall be made, under the authority of 
the United States, shall be the supreme law of the land ; and 
the judges in every State shall be bound thereby, any thing in 
the Constitution or laws of any State to the contrary not- 
withstanding. 

Clause 3. The Senators and Eepresentatives before men- 
tioned, and the members of the several State Legislatures, and 
all executive and judicial officers, both of the United States and 
of the several States, shall be bound by oath or affirmation to 
support this Constitution; but no religious test shall ever be 
required as a qualification to any office or public trust under 
the United States. 

313 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ABTICLE VII. — Ratification of the Constitution 

The ratification of the conventions of nine States shall be 
sufficient for the establishment of this Constitution between 
the States so ratifying the same. 

Done in convention, by the unanimous consent of the States 
present, the seventeenth day of September, in the year of 
our Lord one thousand seven hundred and eighty-seven, and 
of the Independence of the United States of America the 
twelfth. 
In witness whereof, we have hereunto subscribed our names. 

George Washington, 
President, and Deputy of Virginia. 



NEW HAMPSHIRE 
John Langdon 
Nicholas Gilman 

MASSACHUSETTS 
Nathaniel Gorham 
RuFus King 

CONNECTICUT 
William Samuel Johnson 
Roger Sherman 

NEW YORK 
Alexander Hamilton 

NEW JERSEY 
William Livingston 
David Brearley 
William Paterson 
Jonathan Dayton 

PENNSYLVANIA 
Benjamin Franklin 
Thomas Mifflin 
Robert Morris 
George Clymer 
Thomas Fitzsimons 
Jared Ingersoll 
James Wilson 
gouverneur morris 



DELAWARE 
George Read 
Gunning Bedford, Jr. 
John Dickinson 
Richard Bassett 
Jacob Broom 

MARYLAND 
James McHenry 
Daniel of St. Thomas Jenifer 
Daniel Carroll 

VIRGINIA 



John Blair 
James Madison, 



Jr. 



NORTH CAROLINA 
William Blount 
Richard Dobbs Spaight 
Hugh Williamson 

SOUTH CAROLINA 
John Rutledge 
Charles C. Pinckney 
Charles Pinckney 
Pierce Butler 

GEORGIA 
William Few 
Abraham Baldwin 
Attest: William Jackson, Secretary 

314 



CONSTITUTION OF THE UNITED STATES 



AMENDMENTS 

TO THE CONSTITUTION OF THE UNITED STATES, RATIFIED ACCORD- 
ING TO THE PROVISIONS OF THE FIFTH ARTICLE 
OF THE FOREGOING CONSTITUTION 

Article I.— Congress shall make no law respecting an es- 
tablishment of religion, or prohibiting the free exercise thereof; 
or abridging the freedom of speech, or of the press; or the 
right of the people peaceably to assemble, and to petition the 
government for redress of grievances. 

Article II.— A well-regulated militia, being necessary to the 
security of a free State, the right of the people to keep and 
bear arms shall not be infringed. 

Article III.— No soldiers shall, in time of peace, be quar- 
tered in any house, without the consent of the owner, nor in 
time of war, but in a manner to be prescribed by law. 

Article IV.— The right of the people to be secure in their 
persons, houses, papers and effects, against unreasonable 
searches and seizures, shall not be violated, and no warrants 
shall issue, but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be searched, 
and the persons or things to be seized. 

Article V.— No person shall be held to answer for a capital 
or otherwise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia, when in actual service in time 
of war and public danger; nor shall any person be subject 
for the same offence to be twice put in jeopardy of life or 
limb; nor shall be compelled in any criminal case to be a 
witness against himself, nor to be deprived of life, liberty, 
or property, without due process of law; nor shall private 
property be taken for public use, without just compensation. 

Article VI.— In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall have 
been committed, which district shall have been previously 

315 



THE AMERICAN CONSTITUTIONAL SYSTEM 

ascertained by law, and to be informed of the nature and 
cause of the accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtaining wit- 
nesses in his favor, and to have the assistance of counsel for 
his defence. 

Article VII.— In suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of trial 
by jury shall be preserved, and no fact tried by a jury shall 
be otherwise re-examined in any court of the United States 
than according to the rules of the common law. 

Article VIII.— Excessive bail shall not be required, nor 
excessive fines imposed, nor cruel and unusual punishments 
inflicted. 

Article IX. — The enumeration in the Constitution of certain 
rights, shall not be construed to deny or disparage others re- 
tained by the people. 

Article X.— The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are re- 
served to the States respectively, or to the people. 

Article XL— The judicial power of the United States shall 
not be construed to extend to any suit in law or equity, com- 
menced or proseeuted against one of the United States by 
citizens of another State, or by citizens or subjects of any 
foreign state. 

Article XII. —See pages 308 and 309. 

Article 'Kill.— Section 1. Neither slavery nor involuntary 
servitude, except as a punishment for crime, whereof the 
person shall have been duly convicted, shall exist within the 
United States, or any place subject to their jurisdiction. 

Section 2. Congress shall have power to enforce this article 
by appropriate legislation. 

Article XIY.— Section 1. All persons born or naturalized 
in the United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State wherein 
they reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person of life, 
liberty, or property, without due process of law, nor deny to 

316 



CONSTITUTION OF THE UNITED STATES 

any person within its jurisdiction the equal protection of the 
laws. 

Section 2. Representatives shall be appointed among the 
several States according to their respective numbers, counting 
the whole number of persons in each State, excluding Indiaiis 
not taxed. But when the right to vote at any election for the 
choice of Electors for President and Vice-President of the 
United States, Representatives in Congress, the executive or 
judicial officers of a State, or the members of the Legislature 
thereof, is denied to any of the male inhabitants of such State, 
being twenty-one years of age and citizens of the United 
States, or in any way abridged except for participation in 
rebellion or other crime, the basis of representation therein 
shall be reduced in the proportion which the number of such 
male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

Section 3. No person shall be a Senator or Representative in 
Congress, or Elector of President or Vice-President, or hold 
any office, civil or military, under the United States, or under 
any State, who, having previously taken an oath as a member 
of Congress, or as an officer of the United States, or as a mem- 
ber of any State Legislature, or as an executive or judicial of- 
ficer of any State, to support the Constitution of the United 
States, shall have engaged in insurrection or rebellion against 
the same, or given aid or comfort to the enemies thereof. 
But Congress may, by a vote of two-thirds of each house, re- 
move such disability. 

Section 4. The validity of the public debt of the United 
States, authorized by law, including debts incurred for pay- 
ment of pensions and bounties for services in suppressing in- 
surrection or rebellion, shall not be questioned. But neither 
the United States nor any State shall assume or pay any debt 
or obligation incurred in aid of insurrection or rebellion against 
the United States, or any claim for the loss or emancipation 
of any slave; but all such debts, obligations, and claims shall 
be held illegal and void. 

Section 5. Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 

317 



THE AMERICAN CONSTITUTIONAL SYSTEM 

Article X.Y.—Seciio?i 1. The rights of citizens of the 
United States to vote shall not be denied or abridged by the 
United States, or by any State, on account of race, color, or 
previous condition of servitude. 

Section 2. Congress shall have power to enforce this article 
by appropriate legislation. 



318 



INDEX 



INDEX 



Adams, Charles F., quoted as 
to right of secession, 68 

Admiralty and maritime juris- 
diction, 138 

Admission of States, 263 ff. 

Allegiance of inhabitants of 
ceded territory, 257 f. 

Appeals from state to federal 
courts, 169 

Appellate jurisdiction of fed- 
eral Supreme Court, 48 ff. 

Bankruptcy, federal control of, 
137 

Black, Attorney-General, doc- 
trine of, as to coercion of 
States, 70 ff. 

Brannon, ' * The Fourteenth 
Amendment," cited, 242 

Brown, Justice, opinion of, in 
Downes v. Bidwell, 217 ff. 

Brownson, ''The American Ee- 
public," cited, 88, 270 

Buchanan, President, doctrine 
of, as to coercion of States, 
70 ff. 

Burgess, J. W., ''Political Sci- 
ence and Comparative Consti- 
tutional Law, ' ' quoted, 5, 
14; views of, criticized, 16 f. 

Calhoun, John C, quoted as to 
constitutionality of Judici- 
ary Act, 49; doctrine of nul- 
lification of, 54 

Carlisle, John G., address of, 
quoted, 195, 223, 232 

Chamberlain, J. I., cited, 110 
21 



Citizenship, state and national, 
241 ff. ; of inhabitants of ter- 
ritories, 257 ff. 

Civil Eights, guarantee of, in 
Fourteenth Amendment, 181 
ff. 

Civil Eights Act, 182 ff. 

Civil War, constitutional doc- 
trine upon which fought, 78 
ff. 

Coercion of States, 70 ff.; 154 
ff. 

Comity, interstate, 274 ff. 

Common defense, 144 f. 

Compact, theory of, in Ameri- 
can political philosophy, 22 f. 

Compacts between States, 284 
ff. 

Concurrent powers, 135 ff. 

Congress, law of, first held un- 
constitutional, 39 

Constitutions, written, province 
of, 7 

Constitution of United States, 



theories as to nature of. 



12 

of. 



ff . ; liberal construction 
36, 45 

Cooley, T. M., "Principles of 
Constitutional Law," quoted, 
113; "Constitutional Limita- 
tions, ' ' quoted, 186 

Corporations, foreign, state 
control of, 282 f. 

Criminal jurisdiction of United 
States, 103 

'Jurisdiction of 
States Courts," 



Curtis, B. E., 
the United 
quoted, 169 

321 



INDEX 



Delegated powers, 139 
District of Columbia, status of, 

239 f. 
Divorce, recognition of decrees 

of, in the several states, 276 

ff. 
Dorr's Eebellion, 115 f. 
Dred Scott case, 243 ff. 
Due process of law, 189 



Hoar, Senator, views of, as to 
annexation of territory, 202 

Hoist, von, ' ' Constitutional 
Law, ' ' quoted, 15 ; " Consti- 
tutional History of the Uni- 
ted States," cited, 64 

Hurd, J. C, ''Theory of our 
National Existence, ' ' cited, 
88 



Elections, federal control of, 

164 ff. 
Eminent domain, federal power 

of, 131 
Equal protection of the laws, 

188 f. 
Equality of States, 264 ff. 
Exclusive powers, 135 ff. 
Express powers, 141 ff. 
Extradition of criminals, 156, 

161 ff. 

Federal state, origin of, 8; de- 
fined, 9; distinguished from 
Confederation of States, 10 

Foraker Act, 213 

Foster, Eoger, "On the Consti- 
tution," cited, 13 

Fourteenth Amendment, pur- 
pose of, 180; interpretation 
of, 181 ff.; 245 

Fugitive slaves, rendition of, 
156 ff. 



Implied powers, doctrine of, 40, 

44 f., 141 ff. 
Incorporated territories, 224 ff. 
Indians, political status of, 

250 ff. 
Inherent sovereignty, doctrine 

of, criticized, 146 ff., 194 
Interstate comity, 274 ff. 
Interstate commerce, federal 

control of, 52, 137 ff. 
Interstate relations, 272 ff. 

Jameson, J. A., ' ' The Consti- 
tutional Convention, ' ' cited, 
271 

Jefferson, Thomas, constitu- 
tional doctrine of, 62; doubts 
the constitutionality of an- 
nexation of Louisiana, 192 f. 

Joint resolution, annexation of 
territory by, 200 f. 

Judiciary Act, of 1789, 36 ; con- 
stitutionality of 25th section 



General Welfare, 144 

Guana Islands, annexation of, 

196 
Guaranty clause of republican 

form of government, 110 ff. 

Hamilton, Alexander, quoted, 
152 

Hare, ''American Constitution- 
al Law, ' ' quoted, 145 

Hartford Convention, 64 

Hawaii, annexation of, 201 ; 



status of, 233 ff. 



Limitations, constitutional, 150 
Lincoln, President, constitu- 
tional doctrines of, 78 ff. 

Madison, James, quoted, 22, 25, 

27, 73, 120 
Magoon, Charles, report on 

legal status of territories, 

cited, 147 
Mason, George, quoted, 26 
McKinley, President, order of, 

criticized, 199 



322 



INDEX 



Merriam, C. E., ''History of 
American Political Theo- 
ries, ' ' cited, 29 

National sovereignty, develop- 
ment of, 34 ff. 

National State, see "Federal 
State ' ' 

Naturalization, 138 

Nullification, doctrine of, 10 
f. ; ordinance of South Caro- 
lina of, 54 f. 

Personal liberty laws, 161 
Philippines, government of, 

210 
Police power, defined, 186 
Porto Rico, government of, 

212 f. 
Preamble, construction of, 145 
President, powers of, over terri- 
tories, 209 
Privileges and immunities of 
citizens of the United States, 
185 ff. 

Eawle, ''View of the Consti- 
tution, ' ' quoted, 63 

Eeconstruction, theories of, 85 
ff. ; constitutionality of, be- 
fore the Supreme Court, 93 
ff. 

Referendum, constitutionality 
of, 114 

Removal of suits from state to 
federal courts, 169 ff. 

Republican form of govern- 
ment, definition of, 113 ff. 

Reserved powers of the States, 
139 

Rivier, "Principes du Droit 
des Gens," cited, 257 

Secession, right of, in a federal 
State, 10; not asserted in 
1789, 26 ff.; threats of, 61 
ff . ; moral right of, 67 ff . ; de- 
clared unconstitutional by 
the Supreme Court, 95, 98 f. 



Small, A. W., "The Begin- 
nings of American National- 
ity, ' ' quoted, 20 

Sovereignty, defined, 4 f. ; na- 
tional, development of, 34 ff. 

Spooner Amendment, 210 

State, definition of, 3; cannot 
be created by a union of 
States, 6 

States, of the American Union, 
suability of, 37, 172, 289; 
coercion of, 70 ff. ; admission 
of, 263 f.; equality of, 264 
ff.; compacts between, 284 
ff. ; suits between, 286 

States Rights, theory of, 12 ff. 

Story, Joseph, ' ' Commenta- 
ries, ' ' quoted, 146 ; quoted as 
to changed attitude of the 
Supreme Court, 57 

SuabiUty of a State, 37, 172 ff., 
286 

Suits between States, 286 ff. 

Taney, Chief Justice, views of, 
56 f., 65 f. 

Taxation, of federal agency by 
a State, 52 

Tenth Amendment, 140 

Territories, power to acquire, 
190 ff.; status of, 205 ff.; 
government of, 207 ff. ; civil 
rights of inhabitants of, 215 
ff. 

Treaty-making power, of Uni- 
ted States, incompetence of, 
to incorporate territory, 225 
ff., 261 

Tucker, St. George, quoted, 62 

Virginia and Kentucky Resolu- 
tions, 38 
Virginia coupon cases, 170 ff. 

Walker, F. A., quoted, 20 
Willoughby, "Nature of the 
State, ' ' cited, 3, 8 



323 



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